Clause 2

Education Bill – in a Public Bill Committee at 4:45 pm on 8th March 2011.

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Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 4:45 pm, 8th March 2011

I beg to move amendment 10, in clause 2, page 3, line 32, at beginning insert ‘Subject to subsection (7),’.

Photo of Hywel Williams Hywel Williams Shadow PC Spokesperson (Education), Shadow PC Spokesperson (Work and Pensions), Shadow PC Spokesperson (Health), Shadow Spokesperson (Cabinet Office), Shadow PC Spokesperson (International Development)

With this it will be convenient to discuss the following: amendment 11, in clause 2, page 6, line 17, at end insert—

Amendment 12, in clause 2, page 4, line 23, at end insert—

Amendment 16, in clause 2, page 4, line 41, leave out from beginning to end of line 3 on page 5.

Amendment 15, in clause 2, page 5, line 3, at end insert—

Amendment 17, in clause 2, page 6, line 17, at end insert—

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Clause 2 amends a provision that was inserted in 2009—commencing on 1 September 2010—into the Education Act 1996, and which applies to all schools in England, including independent ones. Two grounds for searching a pupil are added:

“(a) in subsection (3) (prohibited items), after paragraph (e) insert—

(ea) an article that the member of staff reasonably suspects has been, or is likely to be, used—

(i) to commit an offence, or

(ii) to cause personal injury to, or damage to the property of, any person (including P);”;

(b) in that subsection, after paragraph (f) insert—

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

Our amendments seek to get into the detail of the Government’s thinking and to examine whether the provision will be good law. As a former Minister in the Departments for Children, Schools and Families, and for Business, Innovation and Skills—with responsibility for further education in the latter—and having been a Minister with responsibility for behaviour and a practising teacher and head of department for 10 years, I have developed fairly strong views, and I suspect that the Minister and I do not, in practice, differ much in our opinion of what the classroom and school environment should be like, and what powers should be available to head teachers and staff.

My strong belief and philosophy was always that teachers have to start with being able to create a calm, orderly environment in the school, because without that the process of learning cannot move forward. The teacher’s saying used to be, “Never smile until Easter,” and I suppose the philosophy could be translated in that way. That is perhaps a slight parody, but it is clearly necessary to achieve a calm, orderly environment if learning is to take place, not just for the benefit of children who turn up in the classroom and automatically respond to such an environment, but for those who do not do that, but nevertheless need that environment to begin learning. It is not just a case of some children  spoiling the learning of others; it is a case of helping those children who otherwise would not learn. It is to everyone’s benefit.

Let me consider amendments 10 and 11. Amendment 10 seeks to find out why the new powers in the Bill are needed in practice, and in what circumstances the Government believe that they would be used. As I said, there is a general consensus that we all need a calm and orderly environment as a prerequisite for learning, so we support the Government’s efforts to build on the work that was done when we were in government to improve teachers’ ability to enforce discipline—several measures did that. Indeed, we believe that the Bill attempts to build on existing legislation that the Labour Government introduced to improve discipline, but we are not yet convinced that it has been thoroughly thought through.

Head teachers already have powers to search pupils. The previous Government clarified in law that teachers and head teachers can use reasonable force to control or restrain a pupil if it proves necessary to stop a pupil committing a criminal offence, or what would be a criminal offence for younger pupils, or if they had the potential to cause injury or damage to property or prejudice good order and discipline—for example, if a pupil refused to leave a classroom when ordered to do so. That power already exists in law, and many examples were given last week in the evidence sessions.

Photo of Sam Gyimah Sam Gyimah Conservative, East Surrey

I appreciate the hon. Gentleman’s question about whether clause 2 makes good law. I spoke to the headmaster of Oxted school in my constituency, which is a state comprehensive with about 2,000 students. I discussed the clause with him last Friday. It was interesting to hear what he said, which is that he finds it useful—going back to your point about the practical situation in which it could be applicable—because first, there is a value in deterrence. Secondly, he envisages situations in which a teacher may need to search a student and they cannot wait for the police to arrive. Police resources might be stretched, so the teacher may need to act immediately. Also, he said that he appreciates that the measures are guidelines, and we should trust teachers to be able to interpret them appropriately.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

You, Mr Williams, do not hold those views, but they might be ascribed to me. The point is that there is some debate and disagreement in the profession, as we will see during our debate, about whether the powers are usable. There are those, such as the head teacher in the hon. Gentleman’s constituency, who think  that the powers are useful and potentially usable. From the evidence we heard last week, there are those who think the powers are useful but not usable, and those who think that the powers are neither useful nor usable. There is considerable disagreement among members of the profession, which is why we need a detailed debate. By engaging in proper parliamentary scrutiny and debate, we can perhaps tease out who is right.

As I said at the outset, I am absolutely committed, as I am sure the Minister is, to trying to ensure that we have the appropriate powers in place to enable head teachers and teachers to do their jobs and maintain a quiet, peaceful, calm and orderly environment in our schools as a basis for learning.

In the evidence sessions last week, witnesses told us on many occasions that good practice meant that they would rarely, if ever, use the new powers described in the clause. We heard from Dr Dan Moynihan, the chief executive officer of the Harris Federation group of academies, who stated:

“In practice, we would not have a male teacher searching a female or vice versa. We would ensure it was done by people of the same gender, with other people being present. That is how we would operate it, and I think that most schools would do so.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 7, Q12.]

Dr Moynihan went on to say that there could be an extreme situation, although he could not immediately envisage one, and that therefore it might be good to have a power like this on the statute book, but the point that I am making is that it is not sufficient to say that there might be a situation. We need to understand clearly under what circumstances the powers could be used appropriately, and in a way that protects both pupil and teacher.

Photo of Richard Fuller Richard Fuller Conservative, Bedford 5:00 pm, 8th March 2011

I have been listening intently to the hon. Gentleman, who has had an extensive teaching career. I was reading his speech about his trip to Llanbradach in the Welsh valleys, where he confiscated cigarettes from some of his pupils. Was there ever a time in his career when he felt that his discretion and ability to search pupils was in doubt under the existing legislation?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

That brings memories flooding back of the field trip to Llanbradach and that incident. I never taught geography, and I shall not repeat what my views were on the subject when I was a teacher, but I did accompany colleagues on a geography field trip to Llanbradach. The hon. Gentleman is correct—I confiscated a pack of cigarettes on that field trip from a young lady, who I think was probably about 15 at the time. Under no circumstances would I ever have considered it appropriate to conduct a search of a pupil of the opposite sex. In that case, it was a simple confiscation, in that she had the cigarettes in her hand and I said, “I’ll have those.” That was how the confiscation took place. I hasten to add that the cigarettes were appropriately destroyed. [ Interruption. ] By burning, precisely. Slow burning was the method.

On a serious point, that clearly would not be an instance envisaged by the Bill for searching a member of the opposite sex. Such a search would take place only  under the extreme circumstances described in the Bill. In my experience as a teacher, circumstances in which someone presented an immediate danger to themselves or to others would be appropriate for restraining a pupil until help arrived, or sending other pupils to call for help, rather than attempting to search a pupil. I am interested to know exactly what the Government’s thinking is. Under precisely what circumstances would it be more appropriate to search rather than restrain?

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

Does the hon. Gentleman think that it would be easier to have the ability to say, “I can search you. You have to hand over whatever you have,” rather than be in the difficult position of a male teacher physically restraining a 15-year-old female adult pupil?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I wonder whether it would be a more useful practical power. Actually, under those circumstances, it might simply serve to exacerbate the situation.

Photo of Pat Glass Pat Glass Labour, North West Durham

My hon. Friend and I have experience in these areas. Does he agree that the worst possible thing to happen to a teacher is to say to a child, “I have the right to search you,” knowing full well that they do not intend to do that, and the child saying, “Go on, then.” That really undermines a teacher’s authority with the child and with others.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

If I were publishing my memoirs and giving advice to teachers, one piece of advice would be absolutely never to make a threat that they do not intend to carry out.

Mr Gyimah rose—

Stephen McPartland rose—

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Who shall I threaten next? I may as well finish the little dialogue with the hon. Member for Stevenage.

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

I appreciate what the hon. Member for North West Durham said a moment ago, but is not physically restraining a pupil the worst thing that could happen to a teacher—that has an impact on the rest of the class, and an emotional impact on the teacher and the child involved—as opposed to having the ability to say not only, “I can search you,” but, “I will search you,” and then being able to follow that through by searching the pupil?

Secondly, do you not believe that this debate is far too focused on secondary schools as opposed to primary schools?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Again, Mr Williams, I am sure that you do not believe that, but I might. However, I do not. The point is that one has to be committed to following through a threat to a pupil, if one is making a threat—if that is the right term to use. Understandably, thinking tends to be dominated by the circumstances of secondary education, because, broadly speaking, behaviour and discipline tend to be more of an issue in secondary schools compared with primary schools. I accept that the law should work in both environments.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

Is the hon. Gentleman clearer than me—I am not very clear, so he will easily be able to help me—on what a search is? One thinks of this complete  close body search as the most invasive form of search, but is going into a coat hanging on a hook a search? Are we therefore giving a more practical power? Is he making rather a fuss over something where there will, in practice, be protocols? That is what we heard from heads. They would have their own clear idea of what it would be. This gives a wider power, where the heads will decide on a common-sense approach. It means that you can go into a bag or coat. I cannot see many male teachers wanting to frisk 15-year-old girls, for reasons we can all easily understand. If it gives practical powers to make a difference, surely that is the right thing.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Some of the other amendments in the group explore those definitions more closely. Obviously, the normal procedure on a search would be that a teacher would be unable to require the removal of anything other than the immediate outer garment—I think I am correct in saying that. We need to be clear, however, on what exactly these provisions entail with regard to the definition of a search. We have tabled amendments that will attempt to elucidate more information on that.

Photo of Sam Gyimah Sam Gyimah Conservative, East Surrey

I liked where you started off—

Photo of Sam Gyimah Sam Gyimah Conservative, East Surrey

Thank you, Mr Williams. I liked where the hon. Member for Cardiff West started off, that as a teacher he would want to see a calm and orderly environment in which study can take place. Is it not frustrating, if we are trying to ensure that environment for teachers, when there is a disruptive pupil and the teacher wants to search them, they say, “You can’t, because I know you have no right to”? Would it not be useful for a teacher to have that power and use it as they saw appropriate in that circumstance?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

As a distinguished former president of the Oxford union, I know that the hon. Gentleman knows the importance of talking through the Chair when addressing the House.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I shall try to avoid making the error myself, but I cannot guarantee it. On the point that the hon. Member for East Surrey raises, the real question is whether one would seek to use the power in the way that he describes and under what circumstances one would need to do so. There are already provisions on searches in statute. Our concern is that this may not have been as carefully thought through as it should be, which is why we are seeking to get into the detail of the clause, so that we understand how it will work in practice, given that the Government have put it on the face of the Bill.

It was striking in our evidence sessions, as I said before those interventions, that there did not seem to be a great chorus of calls from the profession for these extra powers. I did not get the sense that people had been queuing up around the corner at the Department’s doors at Sanctuary Buildings to ask for these powers to  be brought in. In the evidence sessions, almost without exception, the professionals could not think of an example—they were asked several times—of when and where the power might be used.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I know my hon. Friend well. He has a great power of imagination, which he uses for song writing and other things, and given his previous experience as a teacher, if anybody could imagine such a situation, surely he could. Has he really not been able to come up with anything in the past week?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education) 5:15 pm, 8th March 2011

I will in no way allow the Committee to see too much of the products of my imagination, but I have thought carefully and seriously about the matter, because I take seriously the need to maintain behaviour and discipline in our schools, as I know the Schools Minister does, and I have found it difficult to understand the genesis of this particular approach and to understand whether it is necessary, proportionate and usable or will create more problems than it is intended to solve. That is my concern down the line. It needs thorough scrutiny during the course of the Bill’s progress, as I said earlier.

Photo of John Hayes John Hayes The Minister for Universities and Science, The Minister of State, Department for Business, Innovation and Skills

This is partly about deterrence, is it not? How seriously does the hon. Gentleman take the issue of deterrence and changing the balance of assumptions in schools, which he will be sensitive to, given his professional experience in that area?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Again, to refer back to our previous discussions, if a deterrent consists of a threat that the subject knows is extremely unlikely to be carried out, I wonder about its value. Also, if it leads to a power that the subject feels is unusable or unfair, I am concerned about the impact that that might have on good relations and good behaviour. As I said, I am interested to tease out the matter further. One interesting thing about the evidence sessions was that all the professionals who appeared before us seemed to say that it would not be good practice to undertake a search in that way.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

Before my hon. Friend goes much further on that subject, I would like to return to the issue of deterrence and the importance of sending signals, to which the Minister referred during our clause stand part debate. We have heard a great deal about sending signals, and many of the witnesses at the evidence sessions were pleased about the signals that the Government are sending about the importance of discipline, but does my hon. Friend agree that even if that signal is sent at this point, the power will ultimately be undermined if it is never used?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Signals are important. I accept that part of the Government’s argument, but whether it is right to put a clause in a Bill in order to send a signal is another matter. I am happy to send a signal on the public record, loud and clear, that I support the importance of good discipline and behaviour in our schools and usable and proportionate measures to ensure it so that teachers can do their job of teaching pupils in the calm, orderly environment that I discussed at the beginning of my remarks. I am happy to send as strong a signal as  possible on that, and I know that the Minister would want to send a strong signal of that kind to our teachers, pupils, parents and the country as a whole.

The real question, though, is whether it sends the right signal if the legislation proves down the line to be unworkable or puts professionals in an even more difficult position with regard to the enforcement of good discipline and behaviour in our schools. That is the nub of the question. Ultimately, will the power be of benefit to teachers and head teachers? Will it help create better behaviour in our schools and a calm, orderly environment, or will it make teachers’ job more difficult? At the same time, will it be sufficiently sensitive to the rights of students and pupils? That is the point.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I think the hon. Gentleman is right about the witnesses to this Committee, but the Select Committee recently produced a report on behaviour and discipline in schools and we heard evidence from the Teacher Support Network. Its 2010 behaviour survey found that

“the majority of teachers who responded said that the expanded set of search powers, announced by the Department, would be important or essential in improving behaviour in their current or most recent school.”

We took quite of bit of evidence during our inquiry on whether it was workable and most of people seemed to suggest that it would be helpful.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I take that evidence seriously and I take the point that the Chair of the Select Committee is making seriously. I welcome the work that his Committee has undertaken on that. But it is our duty in this Committee to probe that even further. Those of us who have been involved in making laws down the years have found that people are often in favour of things in general but that when it comes down to the detail there are often more complexities and difficulties to what superficially might seem like a very good idea.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I do not know whether my hon. Friend recalls that the previous Labour Government brought in a curfew power for 10-year-olds. I remember at the time as a social worker saying that nobody would use it as they would see it as a child protection issue, not a matter for disciplinary sanctions. The Government went ahead with it because it was sending a signal. Subsequently it was never used and it undermined the Government’s position. Leaving aside all the problems that I will come on to when I get my opportunity to speak on the amendments, my view is that this power could equally undermine the whole approach.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Yes. I am conscious that I am someone who over the years may have been guilty of the mistake I am trying to avoid here. I supported measures that were tough on things like bad behaviour and antisocial behaviour, not least because as someone from a working class background, I have always thought that it was important to have high standards. Being against antisocial behaviour was not right-wing, but was protecting ordinary, hard-working families who were trying to raise their families, maintain good standards and not live off other people in the community.

I completely agree that we need to maintain high standards and not tolerate poor standards of behaviour in our schools and our communities. However, I want to make sure that we do not undermine that aim by introducing unusable powers and laws that might in practice not prove to be as effective as they might superficially seem when read in the context of a headline in a popular newspaper.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

By way of balance to my earlier remarks one of the recommendations of the Select Committee was:

“School staff will only feel confident in using their powers if they are regularly trained and if they sense that they have the full support of school leaders in their use.”

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

Yes. The hon. Gentleman presages some of the debate that will emerge from our consideration of these and the other amendments to clause 2 by drawing attention to the Select Committee’s recommendations on training.

It was quite striking that the professionals who gave evidence to us last week could not think of an example where the power would be used and all felt that in good practice it would not be used. In other words, it would be bad practice to use these powers. So are we legislating for bad practice by introducing this clause? That seems to be the conclusion of some of the evidence last week clearly and loudly and often from former head teachers and school leaders.

Photo of Dan Rogerson Dan Rogerson Liberal Democrat, North Cornwall

The hon. Gentleman has characterised this as potentially legislating for bad practice. Could it not be regarded as legislating for particular and perhaps extreme circumstances, but none the less enabling steps to be taken should something untoward arise? It may not be commonplace that one would go as far as some of the regulations allow, but we have heard from head teachers that they, none the less, feel it is important that such regulations are on the statute book. What is his reaction to that characterisation of the provisions?

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

We do not necessarily legislate for every possible circumstance under the sun. My point is that some of the people who gave evidence in the oral evidence sessions last week seemed to indicate that it would perhaps not do any harm to have this on the statute book, although they would never use it. Those are the ones I would characterise as saying that it is unusable but useful to have in that way. There were others who said that it is not usable under any circumstance and that it would be bad practice for teachers to use the power that the Bill suggests they ought to have. That is a very serious point, and it is a question that the Minister needs to answer. If there is a strong view among professionals that this clause would be bad practice, does that make it bad law? I leave it to the Minister to comment on that when he responds to the debate.

Photo of Julie Hilling Julie Hilling Labour, Bolton West

Does my hon. Friend agree that the current legislation allows searches and other things to take place in emergency situations? If a situation was so grave, the current legislation allows the rules to be overlooked during that period. So if there was a threat, the current legislation already allows for searches.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

This clause introduces a power for a teacher to be able to search on an individual basis where there is an immediate threat of harm to the pupil or to others. Yes, under such circumstances it would be perfectly possible to search a pupil under the current powers, but a teacher could not immediately do it without supervision and could not search a member of the opposite sex. We are all concerned about such circumstances. The amendment, therefore, seeks to probe the detail of the Minister’s thinking on that.

Let me refer briefly to the level of concern about these provisions. It is not just the Opposition—me as a shadow Schools Minister and my hon. Friends—raising concerns about this, because a wide body of organisations, including the teachers’ unions, have contributed evidence to the Committee and expressed concern.

In fairness to the NASUWT—I have never been a member of that body, I hasten to add—it is usually seen as a union that is pretty tough on such disciplinary and behavioural issues in schools. When I was a Minister, it often knocked on my door to say that we needed to participate in the behaviour partnerships. It participated in our behaviour working group in the Department and was pretty strong on behaviour, but it has expressed concern that the clause could give staff more extensive stop and search powers than even the police have.

The NASUWT said that the powers do not pay any respect to parents’ rights on the searching of a child or the confiscation of property. It said it was questionable whether it was in the public interest for school staff to have such extensive powers to confiscate and dispose of private property, to restrain and to search. It was concerned about opposite sex searching and how it might infringe the dignity of the pupil. It was concerned about ethnic minority cultural sensitivities and about there being insufficient safeguards against abuse and misuse of the powers—targeting specific sections of the pupil population, for example. That is what the representatives of the teachers themselves told us.

The NASUWT organisation has often been very strong on such issues, but it is concerned about the provision to confiscate property and delete data, which opens up the question of subjective actions and judgments. The provisions might, therefore, put teachers in a difficult position with regard to human rights.

Other concerns were expressed by other organisations and, yes, other unions and teaching unions such as Unison and the NUT. The NSPCC, which the Minister knows is a semi-statutory body in this regard and has a statutory duty to advise the Government on children’s issues, made the point—the Chair of the Select Committee has also made it—that all members of staff who use force should be trained and accredited and must not cause the child or young person any serious harm as a result of it.

Organisations such as Barnardo’s also expressed concerns about the extension of powers of school staff to search pupils without their consent. It described the provision in the Bill as “troubling”. It also said that existing safeguards to protect both the child and the teacher must remain, and that searches should always be made by a member of the same sex, with a witness and be recorded. It said that the school’s police liaison officer should conduct searches, with regard to the codes of the Police and Criminal Evidence Act 1984.

Barnardo’s expressed concerns about the definitions, which was a point that I think the Chair of the Select Committee made earlier about terms including “search”, “reasonable grounds for suspicion”, “risk of serious harm”, “good reason”, and a child’s age and development. Unsurprisingly, organisations such as Children’s Rights Alliance for England and the Children’s Society also expressed concern. To balance that, I accept that head teachers’ organisations have expressed broad support, including the Association of School and College Leaders, for the extension of items that can be searched for. However, a wide range of organisations, including representatives of teachers and organisations that consider issues relating to children, have expressed very serious concern about the Bill.

Amendment 12 would ensure that searches, if they are introduced in law, will be done in such a way as to maintain the child or student’s dignity and with an awareness of special educational needs. It would ensure that staff undertaking searches, if we have them at all, are appropriately trained, in particular, in search methods that maintain pupils’ dignity and right to privacy and in methods that are appropriate for pupils with special educational needs and disabilities. That is because we believe that good discipline comes from a culture of respect within schools, and not just from a culture of fear. That means respect between pupils and teachers—in both directions—but it also means respect for an individual’s privacy and dignity. The best schools for behaviour and discipline are those that understand the importance of those things, as we heard in evidence last week. We heard last week from Sir Alan Steer, who did so much work on behaviour and discipline for the Government, about the importance of respect and maintaining dignity.

In written evidence, CRAE said:

“These searches constitute a significant intrusion into children’s privacy (protected under” the UN convention on the rights of the child

“as well as the Human Rights Act)”, so the Government must provide evidence to show that the measures are

“necessary and proportionate in order to be lawful.”

The Minister will, of course, want to provide that evidence, because searches should not be undertaken unless they are absolutely necessary. It went on to say:

“Searches can be very invasive and unpleasant experiences, causing children embarrassment, anxiety and humiliation. In addition, searches may have different and more pronounced implications for children with a history of physical or sexual abuse, children with a disability or special educational needs…or children from different cultural backgrounds. It is important that staff that carry out searches on children with SEN” or disabilities

“have an awareness of these issues and that reasonable adjustments are made for these children.”

The organisations that represent children with SEN and their parents are also concerned. I am sure that many hon. Members are familiar with Ambitious about Autism, which used to be known as TreeHouse. It recently produced an excellent video for its relaunch as Ambitious about Autism, which succinctly brings to life the link between autism and the potential for the misunderstanding of behaviour in our schools and disciplinary issues. I recommend that Committee members  watch it, and I am sure the charity will be happy to provide it. It said in evidence:

“Children with autism often have difficulty understanding instructions, and coping with social interactions. They may also have sensory issues that mean they may respond in an unpredictable way to physical contact. Both these factors have an impact on teachers’ ability to carry out searches that are safe for both pupil and teacher. Our experience is that teachers require training in order to understand these factors, and carry out safe and appropriate searches for young people with autism”.

There is general concern out there as to how seriously Ministers are taking these subjects, particularly the issues around autism and the point that sometimes what is interpreted—broadly speaking—as just naughty children or bad behaviour may well have roots in the child being on the autistic spectrum.

More generally, the NUT has drawn attention to the importance of proper training in such matters. They point out that

“for numerous reasons many teachers are currently reluctant to use the powers they already have to search pupils and would not have the confidence to do so even in circumstances where it may be necessary to prevent imminent harm to others.”

They go on to say that

“such training should ensure that searches are conducted in such a way as to avoid harm to the child being searched as well as to avoid unfounded allegations of ‘improper behaviour’ by the teacher. Such training could also usefully include managing potentially inflamed situations, identifying particular cultural or religious sensitivities, de-escalation techniques and risk assessment.”

They have also pointed out that the relationship between teachers and pupils could be undermined by the use of these powers.

Therefore this amendment seeks to protect children and staff by ensuring that all staff carrying out searches have received appropriate training in the need to maintain the pupil’s dignity and right to privacy.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

How did I pronounce it? I beg your pardon. I am not sure how Hansard will report that, but somehow or other they will work it out.

I apologise for the length of this contribution, but there are a large number of amendments grouped together. I must cover each in turn, but we are getting there. Amendment 15 returns us to the point raised by the Chair, and seeks to draw out the definitions of some of these terms as they are used in the clause—including “search”, as he mentioned. The amendment would insert a requirement for the Secretary of State to issue guidance to define the terms, because the clause gives school staff powers in relation to them but the Bill does not define them.

As it stands, according to some of the witnesses whose evidence we heard, the clause gives school staff more extensive powers than the police with respect to stop and search. Was it the Minister’s intention, in drawing up these clauses, to create a situation where teachers might potentially have more extensive powers than the police?

On this point the NASUWT told us:

“The extension of powers (section 4A) to search students afford school staff more rights than those of a Police Officer exercising the provisions of stop and search. There are no safeguards against misuse or abuse, including targeting specific sections of the pupil population, for example minority ethnic pupils.”

Without clear definition of these terms, there could be uncertainty among staff, pupils and parents; a risk that certain sections of the population would be disproportionately targeted; and a higher risk of legal challenge when the search powers were used. Barnardo’s and the NUT have said that the Bill should define “risk of serious harm”, “reasonable grounds for suspicion” and “good reason”.

The NUT told us that the only statutory definition of “serious harm” it could find was under section 224(3) of the Criminal Justice Act 2003, where “serious harm” is defined as

“death or serious personal injury, whether physical or psychological”.

If a member of staff is to decide that conditions are satisfied to allow him or her to dispense with the requirement that the search be carried out by a person of the same sex as the pupil in the presence of a member of staff of the same sex, it is vital that “serious harm” is properly defined in the Bill. The amendment would require the Secretary of State to issue guidance defining that and other key terms in the Bill.

Amendment 16 would reinstate the requirement for a witness to be present when a search is undertaken. The clause dispenses with the requirement for a search to be carried out by a person of the same sex as the pupil in the presence of a member of staff of the same sex as the pupil, if the staff member believes that “serious harm” will be caused if that search is not carried out as a “matter of urgency.”

The Committee will remember the evidence we heard from Brian Lightman, the head of the teaching union ASCL. He said:

“I have been a head for 15 years. I cannot imagine a situation where I would sanction any of my staff searching a member of the opposite sex without a witness present. In fact, I wouldn’t allow anyone to search a member of the opposite sex, full stop.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 24, Q50.]

As I said when we discussed amendments 10 and 11, Dr Moynihan made similar comments, albeit he added a caveat to them a little later.

Other organisations such as the Children’s Rights Alliance for England, supported by Action for Children, Ambitious about Autism, Barnardo’s, the British Youth Council and the Children’s Society have described the relaxing of safeguards relating to witnesses as alarming:

“Our alarm at the proposed search powers is exacerbated by the relaxation of safeguards for children when being searched. The Bill removes requirements for the search to be…witnessed by another member of staff, if they reasonably believe that there is a risk that serious harm will be caused if the search is not conducted.”

They think the safeguards must be retained. In similar terms, Barnardo’s stated its belief that the extension of the powers of school staff to search pupils without consent is troubling, and that existing safeguards to protect the child and the teacher must remain. It also confirmed its belief that searches should be witnessed.

I have not yet mentioned the National Association of Head Teachers. During the evidence sessions, its general secretary, Russell Hobby, highlighted another risk by stating:

“the police may take a different view of someone’s choice to use the power to search someone without witnesses, and staff in schools may find themselves getting into trouble for that because the police may disagree with the DFE’s interpretation of what a teacher’s rights are, so that would be a worry.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 24, Q46.]

To safeguard children and protect staff, the amendment seeks to reinstate the requirement for a witness to be present.

Finally, we get to amendment 17 and you will be pleased to know, Mr Williams, that I will be brief. I apologise to the Committee for the length of my remarks. The Bill lacks consistency, and the amendment seeks to ensure that the clause applies to academies as well as to maintained schools. The Bill lacks consistency in where it explicitly mentions academies—and, I suppose, free schools—and where it does not. We are concerned that a two-tier education system could be created between academies and maintained schools with different regulations applying to each. Therefore, for the avoidance of doubt, amendment 17, the last in this lengthy group, seeks to clarify that the clause also applies to academies.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley 5:45 pm, 8th March 2011

I agree with the rest of the Committee; it is hard to think of anything else that can be said after the full and thorough introduction of the amendments by my hon. Friend the Member for Cardiff West. However, I would like to add my voice to the issues that he has raised. He was balanced in saying that there is a range of views on the issues and that it is important to have a full debate. In that sense, I have a tendency to be less balanced because I think that moving down the route that places a power in the Bill, in primary legislation, for a teacher to search a child of the opposite sex without a witness present is simply a bad thing. In addition, the circumstances in which that might have to take place have so far been beyond the imagination of not only my hon. Friend, but of every witness that we had before the Committee last Tuesday and, as far as I am aware, of every member of the Committee.

I would like to spend some time looking at what the circumstances might be for such a situation to arise. They appear to be where there is a teacher, pupils of both genders and a situation that has the potential to cause serious harm; my hon. Friend has already tried to set out the difficulties from not defining that situation. For me, the situations that spring to mind are primarily those that are likely to involve violence with an implement, because a search would be neither here nor there for violence without an implement. It would suggest that a situation has arisen where a pupil was going to use something, either at that point or in the future, of a violent nature. Obviously, the sort of thing that we are most likely to think of is a knife. I cannot, for the life of me, believe that anyone would think it a good idea to search a young person for a knife if no one else is about or if other pupils are around. If the child or young person had a knife or something else—I cannot imagine what it could be—which they did not want the teacher to know about, or if they were not prepared to comply with instructions, it would be a situation where there was some tension, which could be inflamed or made worse by someone getting involved and saying, “I insist on searching you.” In circumstances where there is a fear of a child who might have a knife, the most sensible thing to do would be to move other pupils out of the way, get someone else involved and, if necessary, call the police. I cannot understand the circumstances that the provision is meant to deal with.  

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I will put the hon. Lady out of her misery. I will, when I respond to the debate, give her examples of precisely what she is talking about. The provisions apply not just to the person of the pupil, but to the pupil’s possessions. There could be circumstances, for example in a primary school or on a school trip with only one teacher, where there is evidence that something in a child’s bag may immediately be used to cause harm. At the moment, it would be illegal for the teacher to search the bag, and we want to change that.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I still do not understand. The clause is currently phrased in a way that suggests that something that could cause serious harm was about to happen at that point. If the teacher believes that a child has something in their bag that at some point—in half an hour or an hour—might cause a problem of that nature, there are other means of avoiding the circumstances in which there is a child of one gender, a teacher of another gender and no witnesses. I struggle to understand the circumstances in which what is proposed could possibly be the sensible way to proceed.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

I thank my hon. Friend for giving way. Does the Minister’s assurance not highlight one problem with the clause? He has offered the assurance that the clause applies equally to the person and the personal property of a student. The clause would be much better targeted if it made a proper distinction between searching personal property and searching the person. Its flaw is that it does not make that distinction.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

My hon. Friend has identified a flaw, but there is more than one flaw in the clause. I am exploring it in such detail, because I genuinely cannot believe that it is the right thing to do. When we had discussions with witnesses last week, what was said highlighted a serious concern that the Government need to think very carefully about. I am not the only one who struggles with this issue. Sir Alan Steer said:

“I am struggling on that one, because that would be something that I would avoid under almost all circumstances”.

He was not able to identify any circumstances in which he would use the power. He also said that if teachers

“thought that the child had a dangerous implement, I would urge them to call the police, rather than actually embark on a search.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 45, Q90, 92.]

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I am glad that the Minister has specified that the power covers property as well as the person of the pupil, which makes it seem much more sensible to me. If a teacher is told by another child that so-and-so has a knife in their bag or their coat pocket, it would make eminent sense for the teacher to want to get the knife out, so that the child has no chance of using it, before they call the police. That is common sense, and the reassurance that we received from witnesses last week was that schools would have their own protocols within defined limits. That gives confidence that those wishing to act in an entirely human, common-sense fashion in an extreme situation will be able to act.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I am little disturbed that the hon. Gentleman thinks that it is a good thing for a teacher necessarily to go directly to pick a knife out of a bag, because we  know that having a knife in their hand can, in some situations, put the teacher at risk. Again, if a child says, “I know that John or Mary has a knife in their bag,” the teacher would first ask them, “Do you have a knife in your bag?” There does not have to be a search at that point; there are many other ways of dealing with that situation. The provision will just put people in very difficult situations.

We heard from Sally Coates, who said:

“None of my teachers would ever dream of searching a child; they would always come to me.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 50, Q102.]

We heard in detail about how a whole process might be built up in a school to have good discipline, to keep things calm and to manage situations.

The other area that I was concerned about was mentioned by the Children’s Commissioner, who said that

“there is no definition of what the exceptional circumstances are that would allow a staff member of the opposite sex to the child being searched to undertake that search. There are some serious issues. I do not think you are safe as a teacher.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 94, Q185.]

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

Does the hon. Lady agree that a number of witnesses said that in the case of cyber-bullying they would have no hesitation whatever in accessing the child to remove the offending mobile phone or piece of technology? Most witnesses went on to say that cyber-bullying in school is much worse than normal physical bullying. It is the new scourge of our time. As the Minister was saying, it is not just the person. Teachers will not be walking into classrooms and patting children down. It is a permissive piece of legislation that will allow people in extreme circumstances to take immediate action.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

Our debate on cyber-bullying was extremely helpful, but that issue does not come under the clause or the amendments that we are debating. I am not against searching in itself, and I am quite happy that we have a power to search. However, from the point of view of children and young people and of teachers, I am very concerned that it can ever be a good idea for a teacher to search pupils of the opposite sex or their bags without a witness. It is important that we continue to have safeguards, and that has been emphasised by a wide range of evidence, both oral and written. I believe that what is proposed is wrong.

Photo of Stephen McPartland Stephen McPartland Conservative, Stevenage

On the question of safeguards, if, as was suggested to some witnesses, we consider a primary school where 90% of the teaching staff are female and half of the pupils are male, will there not be occasions on which a five or six-year-old child may have something in their bag or have picked up something that could pose a threat to themselves or the other children? It is important that the teacher accesses that child and removes the offending item as quickly as possible, for the child’s own safety. The teacher cannot run off and leave 29 other five or six-year-olds on their own while they find a witness.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

Again, the hon. Gentleman raises an interesting issue, but he has to dig hard to find circumstances in which the power would be appropriate.

I return to the question of imminent and serious risk. We are talking about a search, not about prevention or about intervening between children, one of whom is threatening the other with a knife. Those are different circumstances. We are talking about a search, but even in primary schools, especially these days when there are generally more staff around and it is easier to find another person to assist in a search, those are not the sort of circumstances in which this power was intended to be used. We have heard about signals and messages and powers, and enabling teachers to take control. As I said, I do not have a problem with a power to search, but I think that this provision is dangerous and inadvisable.

Photo of Pat Glass Pat Glass Labour, North West Durham

I want to talk about restraint and training. In the wrong hands—untrained hands—the power to restrain is incredibly dangerous. Some years ago, I introduced a restraint policy in the local authority area where I was working in order to protect children and members of staff. Alongside that restraint policy there was a fully funded and comprehensive training policy. It was aimed at staff in all special schools and pupil referral units, and at staff in mainstream schools who were working directly with or supervising students with a known SEN or other type of disability that could, in certain circumstances, lead to violence, perhaps because the situation was not right for that student.

The restraint policy was an absolute back-stop for other measures, including ensuring an appropriate curriculum. We know that violence can often be prevented by good teaching, an appropriate curriculum and suitable training for staff. Nevertheless, restraint is necessary on occasions—perhaps to prevent a child injuring himself or others, or to prevent a child injuring a member of staff; and it can be used if there is a reasonable belief that a crime is about to take place.

In putting together that restraint policy, I worked with head teachers, teachers, other school staff representatives, representatives from social care and health care representatives from child and adolescent mental health services. I also worked with parents and unions which, in some respects, is something that is missing from the Bill. Before implementing the restraint policy and the training policy that went alongside it, I met head teachers. For that reason, I sympathised a little with the Minister this morning about putting a policy together and thinking that it will be a benefit to everyone, but then having people look for gaps in it. I tried hard not to become defensive in those circumstances.

The greatest opposition to my policy, surprisingly, came from the school in the authority that had the highest number of pupils with behavioural difficulties. It was a highly specialist emotional and behavioural difficulties school, which was judged as outstanding—and as the Minister knows, there are not many outstanding EBD schools. The school had very few incidents of restraint, and the argument was that because their school was based on relationships, respect and good learning, they simply did not put their hands on pupils. Although their intention was not to put their hands on pupils, in reality that is impossible. It is regularly necessary to get in between one pupil and another. Once I dug down to their real concerns, I found that they were very  worried that even with the training alongside it, putting a policy in place would tempt teachers in other schools who were less well trained, experienced or skilled to put their hands on children and restrain them. They were not worried about themselves; they were worried about the havoc that this could cause, or which could be wreaked in other schools.

Alongside the restraint policy, I introduced something called Team-Teach, but there are many programmes out there, such as CALM—Crisis, Aggression, Limitation and Management. There are lots of highly specialised training courses. If we are going to look at searching students or restraint, the Minister needs to indicate in the Bill that that can only be done by staff who are trained. I was able to allay the fears of the teachers in that highly specialised school by assuring them that 90% of the training that they would receive was based on de-escalation techniques, and that only 10% would be about restraint.

Returning to the example—given time and again today—of the child who comes into school with a knife, I have had experience of such situations. I know of an occasion where a child with autism came into school, and there was reasonable belief that that child had a knife in his bag. What the teacher did was quite correct: they removed the other children from the classroom, got one child to get someone to come in so that there was a witness, and the teacher then sat down and calmly talked to the first child. It took a long time. The teacher did not go raking in the child’s bag, or search the child. They talked and eventually, the child went into his bag, took out the knife, and handed it to the teacher. That is the correct way to handle such a situation. It should not be about going into children’s pockets and searching, because it is likely that somebody will get hurt in such situations.

The training programme that was put in place, which is also in place in many other areas, was about training every relevant member of staff who needed to receive training. In some cases, in highly specialised schools, that included the caretaker and the lunchtime staff. The training had to be regularly updated, which meant annually. All trained staff had to be certified, so that this was not a waste of their time; they could use it as certification when applying for other jobs. There was a recognition that this would be very costly, and that ongoing annual costs were attached.

I say that to the Minister because I want the Government to be absolutely clear about the extent of the Bill’s proposals. The costs to schools and other educational establishments need to be highlighted. It is not only about the immediate costs—it is about the ongoing costs, because if staff do not receive training and something goes seriously wrong, we are leaving teachers not more protected, but less.

I also want to highlight particularly the issue of training for searching children with SEN. That would need to include specific training on types of SEN, because, as was said earlier, searching a child of limited intellectual capacity is very different from searching a child with autism, where touching of any kind may be an issue and could escalate a situation. Training needs to be provided to deal with students from ethnic minority backgrounds and cultures. I cannot believe that the Government are seriously suggesting that it would be okay for a male member of staff to search a Muslim teenage girl without a witness present.

Training is also required to measure the effect on students, once a search has taken place, on self-esteem, confidence, violation of privacy and breakdown of trust, particularly if a search is carried out and nothing is found. Training needs to take into account the notification of parents, because they will be notified after the event. It also needs to take into account complaints, so that those who feel that they have been unfairly targeted, especially if no offensive weapon or other item is found, have a right to make a complaint.

I am worried about what appears to be a gung-ho policy without appropriate thought given to the detail. Sadly, lack of detail in policy is something that we see a lot. The Government have indicated that they see the powers being used rarely, but I can see many cases ending up in the courts. The Government want to reduce bureaucracy and cost to schools, but the costs connected with lawyers and court cases may escalate hugely for schools if this is not handled correctly. The Government talk about protecting teachers, but they should think carefully about where the powers will lead and where individual teachers will be left if a search goes wrong—as searches can and will—and the teacher has not been properly trained.

Photo of Stella Creasy Stella Creasy Labour, Walthamstow 6:00 pm, 8th March 2011

Does my hon. Friend have any thoughts about some of the concerns that I have? As these powers are being introduced, there might be an expectation that teachers will use them. If there were incidents in schools, there could be a suggestion that teachers should be held to account for not having searched a child in that way, if it was shown later that somebody had brought an implement into school, for example.

Photo of Pat Glass Pat Glass Labour, North West Durham

The possibilities are almost endless. My concern is the impact on individual teachers who, if they do not receive the appropriate training, could be left in a less good position than they are now.

Finally, I want the Government to think about what they are proposing for children and what that says about how we think about them. I ask the Government to think whether they would ever consider it a good idea for an employer to have the right for a senior male member of staff to search a junior female member of staff—a young lady of 16, for example—without a witness, and what reason would ever justify that. The powers seem a good idea until they go wrong, and we must always have our eye on the exceptional and what can, and what we know from experience will, go badly wrong. I ask the Government to think again about some of the Bill’s provisions.

Photo of Julie Hilling Julie Hilling Labour, Bolton West

It is a pleasure, Mr Williams, to serve under your chairmanship. My hon. Friends have already raised a great many concerns about the powers in the Bill and I, too, want to question some of the reasons for the changes being proposed. We have evidence that suggests that teachers are not using the powers they already have. We have been given information on why that may be: they are reluctant to take on the policing role; they are concerned about the damage to relationships that may occur if they are involved in searching pupils; and, in some cases, they do not have the confidence to intervene. One could ask why that may be so. There are all sorts of reasons: fear of the consequences; fear of the accusations that could be made against them—we  will address the issue of accusations later in the Bill, but it is clearly relevant here—and fear of antagonising situations. My hon. Friend the Member for North West Durham talked explicitly about some of the issues that may arise in difficult situations that teachers may face in the classroom, and for some people there is fear of pupils. I know from my previous work in education that it can be intimidating to confront a 6-foot young person when one does not match them in size or shape.

We seem to be saying that increasing the powers will encourage teachers to use them, but they are not using the powers they have. No evidence has been given to us, certainly not during our evidence sessions, explaining why we need to increase the powers—apart from the vague suggestion that we need to send a message to young people. If we restated the existing provision and actually used the legislation on searches where that is necessary, that might send the message to young people that they cannot do whatever they want, and that teaching staff in schools have the power to do all the things the Bill is trying to address.

The Government spoke of wanting to get rid of unwanted regulation, so I do not understand why they are introducing regulation now that everyone is saying is unwanted.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

It is not fair to say that the regulation is unwanted. The Association of School and College Leaders, which represents heads, said that it

“strongly believes that this extension of search powers is necessary and proportionate”, so it has come out strongly in favour. It gives instances of cyber-bullying, for example, in which, at the moment, it is more likely that the police would have to be involved, but which would be better dealt with internally in order to introduce clarity. It gives an example of one of its members being suspended at the instigation of a local authority for authorising a search for an illegal substance, even though what was found was an offensive weapon. I recognise that there are arguments on both sides, but it would be unfair to suggest that there is not strong evidence for and support for the extension.

Photo of Julie Hilling Julie Hilling Labour, Bolton West

I thank the hon. Gentleman for that intervention, but I did not hear anyone who gave evidence to the Committee say that they could foresee a time when the extension would we wanted, except when we pushed them extremely hard. As my hon. Friend the Member for North West Durham said, no one could say when they thought they might need it, and generally the response was, “Well no, but it might be useful.” I have not seen any evidence saying that we need that. I would be interested to hear any strong arguments.

The current legislation allows searches to take place properly in certain circumstances by a senior member of staff with a witness present, and no one has said—there has been only a vague message—that they see a need for strengthening the legislation in the way the Government are suggesting. If the issue is searching property, should the Bill not refer to a power to search property, rather than a power to search a person? If the issue is the need to search property, the Bill should state that that is where current legislation is lacking. There is no good reason for this draconian policy.

Serious concern has been expressed by many external groups about changing the need for same-sex searching. No one has produced evidence for why that is needed. All our witnesses said that they could not foresee an occasion when they would need opposite-gender searching. The risks are very great, including accusation, and we should consider the effect on young people and the risk that they will feel violated by such a search. Young people have the right to feel safe in school, whether or not they are accused of wrongdoing. The protection of not having opposite-gender searching should remain. If something is not broken, why try to fix it?

Photo of Dan Rogerson Dan Rogerson Liberal Democrat, North Cornwall

The hon. Member for Stevenage referred to primary schools where there may be an all-female staff, and there are examples of that in small primary schools in rural areas in my constituency. I accept what hon. Members have said about training being important, but if it were necessary to find a male who was not a member of staff in order to conduct a search on a male pupil, that person would be far less likely to have had appropriate training than a female member of staff. That may seem extreme, but I do not think it is. There are a number of schools where that might be an issue.

Photo of Julie Hilling Julie Hilling Labour, Bolton West 6:15 pm, 8th March 2011

As hon. Members can see, I am looking for inspiration and support from my colleagues, who have been involved more recently in schools. It is also about having a witness of the same sex. Wherever possible, the search is done by somebody of the same gender as the pupil. If there are exceptional circumstances where that cannot happen, it is about having a witness of the same gender as the pupil, even if that witness has to be another young person. The Bill allows for the search of a person of opposite gender without any witnesses present. That seems nonsensical, unnecessary and dangerous for all concerned: pupils, teachers and any other staff involved.

I also want to share my concern about the need for definitions and guidance. My good reason, Mr Williams, may not be your good reason. As someone who used to work in education, I would go on training courses and be shocked by the different views of colleagues on danger and the necessary response to it. We cannot say that everybody knows what good reason, force or risk is. Those definitions are needed in the Bill. One has only to read the local newspaper on a Monday morning to see how many people on a Saturday night had a different definition of force or of good reason to intervene. Clearly, when there are so many discussions and an outcry about what the police consider to be reasonable force, but citizens do not, we need a definition. Defining terms in the Bill such as good reason, force, risk, serious harm and reasonable grounds for suspicion is about protection for all: teachers and young people. We need to be giving guidance on those issues.

Like my hon. Friend the Member for North West Durham, I am also concerned about the provisions that cover pupils with special educational needs, particularly those on the autistic spectrum, where searches could make the situation far worse. We know that SEN pupils have a far greater risk of exclusion, so I would therefore expect a greater risk of searches being carried out. The Government need to address the issues of young people with special educational needs.

I come back to wondering what is wrong with the current legislation. The person searching should be a senior member of staff of the same gender and there should be a witness present. Ideally, the young person should have their own witness present. That would be protection for both young people and staff. Young people have responsibilities, of course, but in those circumstances, they also have rights. The consequences of getting it wrong—as my hon. Friend the Member for North West Durham said—can be grave for the school, the pupil and the teachers concerned.

Clearly, there should also be training. As a governor of a school for those with emotional and behavioural difficulties, I went on one day of a weekend course on restraint training for the staff there. People need training for those issues. Unless every school is going to train every teacher and member of support and other staff in restraint and search techniques and everything else, we need to be careful about who is enabled to carry out the actions that the Bill permits.

The message seems to be that we need the changes because we cannot do these things under current legislation. My understanding of current legislation is that if there is imminent danger, it would be reasonable at that point to waive the necessity for the presence of the senior member of staff and so on. However, if there was imminent danger one would expect the police to be called anyway, because we do not and should not expect our teachers to be standing in front of somebody waving a knife, a gun or other things and saying, “It’s all right, kid, just give me the gun or the knife.” As my hon. Friend the Member for North West Durham said, we would expect particular things to happen.

Finally, it makes no sense to me to exclude academies and free schools from the Bill. If the Government get their way, more and more schools will become academies. Personally, I hope that they do not get their way and that sense prevails. However, do the Government think that there will not be a need for searches in academies? Will there be a different type of pupil in the academies? Clearly not. I do not personally agree with the measure, but I do not understand why it will not apply to all schools because surely it should.

The clause needs a drastic rethink. There is limited support for it, apart from the “sending a message” aspect, and I hope that the Government will accept the amendments.

Photo of Mark Durkan Mark Durkan Shadow SDLP Spokesperson (Foreign and Commonwealth Affairs), Shadow SDLP Spokesperson (Home Affairs), Shadow SDLP Spokesperson (Justice), Shadow SDLP Spokesperson (Treasury)

When the Committee sat last week to take evidence, I was essentially there in many ways to eliminate myself from its inquiries. However, I became particularly intrigued and perturbed by several aspects of clause 2. Obviously clause 2 itself will not apply to Northern Ireland, but once these things are established, principle and precedent are set and therefore there is a direct interest in my region in the clause.

I have made a point of discussing these matters with people who are currently heading secondary schools and working in further education, and also with people who previously had long experience in such settings. Last night, I had a very good conversation with such people, along with currently serving police officers who all found themselves somewhat disturbed and concerned about how such powers could work or be exercised in practice.

One of the points that I made last week was touched on by the hon. Member for Walthamstow in an intervention. In Northern Ireland, we have experience of an awful lot of legal proceedings and litigation now arising not only where authorities are challenged about their use of powers but where people are challenged about their failure to use certain powers.

I can give an example from the Northern Ireland context. In this instance, it involved a FE institution rather than a secondary school. However, there are rules there because they believe in having a shared campus and shared college environment, and a neutral environment. There are some legal provisions about that, too. There are rules that say that not only can no flags, such as tricolours or Union Jacks, be displayed or worn on school premises but no football jerseys can be worn, to cover things like Celtic and Rangers. That also extends to Gaelic Athletic Association jerseys and so on.

However, because action was not taken in a particular campus setting around such displays, which could include keyrings, bags and even smaller items, a student ended up leaving the campus, claiming to feel alienated and intimidated. Then proceedings were issued against the college for not acting and for the fact that no member of staff had acted to intervene or remove any of those items.

I imagine that in England there could be times when ethno-political sensitivities in a particular area will affect schools or groups of schools or neighbourhoods. There will be items that are perhaps be deemed to be proxies for particular ethno-political interests, or whatever. They could have a material effect on conditions in a college, including not only relations among students but the physical environment, and could create the threat of disorder and a risk of injury.

We need to remember when we legislate for powers, as the shadow Minister said, that they are usable, rather than assuring ourselves that a measure is safe because it will not be used in the way provided for, which is what some people told us last week. I also note that in the discussion of evidence last week and in some interventions relating to the shadow Minister’s amendments, many Members referred to the importance of school protocols and head teachers’ guidelines. The clause as it stands does not make much reference to such things. It mentions school rules, and we are told that school rules may define what items may be confiscated or intercepted, but it does not say how far school rules may go in setting out how the powers to stop, search or seize will be used.

School rules, as subsequently defined in the clause, appear to be rules that will be published to tell pupils and parents what sort of behaviour is allowed, what is forbidden, what items are frowned on and so on. The clause does not say that the publication of those school rules will include the guidance to teachers about when they can and cannot act and whom they should contact in a particular situation. It would be desirable if published school rules included that.

It seems to me that if so many people are assuring themselves that reference to sensible and strong school protocols and teacher guidance is to be relied on, the clause should at least refer to that, and, as it stands, it  does not. As well as a general reference to school rules, the clause says that when the powers are exercised, people

“must have regard to guidance issued for the purpose of this section by the Secretary of State”.

There are two references to a requirement to have regard to such guidance.

I wonder whether some of the amendments should go further. If guidance will be issued by the Secretary of State, and if the call made by a teacher or school becomes a matter of controversy—as the shadow Minister pointed out, some sections of the press can become exercised by certain issues, and incidents can be blown up into events of significant media interest—the Secretary of State might be called on, possibly by Members of Parliament, to comment on whether the use of the powers in such an instance was envisaged in the guidance approved by the Secretary of State, and whether the issues raised by the new case mean that it must be revised.

If some people support the clause because they think that it will put schools in a stronger position, they need to consider whether its outworking will do so. If the powers are not used and something untoward happens to someone, the school and staff could be subject to challenge for dereliction of duty in failing to exercise the power.

A number of things come up when we look at stop-and-search powers. We need to support the amendments, which would improve the clause quite a bit, even though they do not mitigate it fully. We also need to go further, however. The Minister made the point that the powers under the clause apply equally to search of the person and the search of personal property. I think there should be a distinction between the two. There are clearly circumstances in which searches of property are needed—we heard the example of going through a bag because it is thought that there is something in it. Searching personal property is one thing, but searching the person is another. A power of handover is different to a power of hands-on, and the clause should clearly differentiate between the two in the professional interest of teachers and other staff who may find themselves in this position.

Terrorism legislation considered by the House has clearly prescribed what outer garments the police may require to be removed when they have stopped someone and made them hand over items, including bags. It seems odd that while such legislation specifies the proper conduct for stopping and the handover powers even  before any search, there is no such definition in this Bill. That is why I support the amendments, including amendment 15, which would require proper definitions for a number of important terms that could be interpreted in an elastic way and become the subject of serious contention in the future.

I appreciate that when we consider such a large group of amendments, it is hard to avoid straying into a substantive discussion of the clause. We need more definitions, however, and the amendments would go some way to achieve that. I hope that the Minister will consider tabling further amendments that will improve the definitions so that we clearly define the power to stop. Even if some of the amendments were accepted, if another member of staff was called either to assist in a search or to conduct a search, because they were better trained than a colleague, we would need to ensure that the teacher who was sending for the other member of staff had workable powers to stop—and to keep someone stopped. We need properly to outline the powers to stop, seize and hold people for further search. The question of search of the person has to be carefully delineated in ways that my hon. Friends have already outlined.

With regard to electronic devices that are seized, there is reference in the clause to the power either to return the item to the owner or to dispose of it, as well as the power to remove material. Again, we need more definition on those matters. Leaving those things purely to school rules will not be enough, and controversy will probably arise because of the relationship between those powers and the Secretary of State’s guidance that is mentioned in the provisions. It would probably help if the power to retain specifically included retention for the purposes of passing on to other authorities—either the police or another authority, such as people involved in child protection, because who knows what could be found on a particular device. A teacher might seize the device for one reason but then find other things. The Bill mentions the power to retain, but not the power to retain and pass on to anybody else, whether to the school authorities or other authorities. The options are to give the device back, or to erase any data or files from it, if the person thinks that there is good reason to do so.

We have already elaborated on some of the concerns that we have with this clause. It seems to me that it merits further consideration by not only the Committee, but by Ministers.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee 6:30 pm, 8th March 2011

I know that I promised not to participate in this debate, but I will now do so, although I shall try to keep my comments brief.

The debate has been interesting and good points have been made. I point particularly to the contribution of the hon. Member for North West Durham. It is tremendously useful to have people in this place who have worked on the front line in various ways and who can bring that expertise to the scrutiny of Bills.

I have mentioned the Association of School and College Leaders and its support for the Bill. I thought that I would also mention the greatest living expert on behaviour and discipline—I hope that he will be vaguely embarrassed that I describe him in that way—Sir Alan Steer. I upset him once by accusing him of being a small  “c” conservative of the worst kind, and he was absolutely outraged and assured me that he was a radical. Putting that aside and sticking to the point, he has produced a lot of work on behaviour and discipline for the previous Government over many years, and there is probably no one with greater experience. In his submission to the Committee, he says:

“In my view it is right that designated teachers and other staff should have the powers to act in the manner of a reasonable parent.”

Photo of Pat Glass Pat Glass Labour, North West Durham

Is not that the position under existing legislation?

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

Sir Alan said that in 2005-06, when the law was first changed, it was because of legal advice that

“the 2006 Act gave the power of search for specific items only. If the legal opinion has now changed I am happy to support the extension of the power of search.”

There is still a specified list.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

On that point, would it be helpful if the Minister could clarify whether the legal advice has changed?

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I think that the shadow Minister is entirely right to ask that question. The key point, however, is that the greatest living expert supports the extension of those powers of search and feels that they would allow a teacher and other staff to act in the manner of a reasonable parent. The truth is that the items to which the Bill extends the powers would absolutely be within the ambit of the behaviour of a reasonable parent. The fact that Sir Alan Steer seems to support the approach is powerful.

Photo of Pat Glass Pat Glass Labour, North West Durham

None of us would disagree with that. We are not saying that one cannot search if there are reasonable grounds for suspecting that a crime is about to be committed. It is about designated teachers who are suitably trained. Not every teacher or every member of staff in a school—who may be of a different sex—can search without a witness, and that is the issue.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

We go back to an issue that lies of the centre of the whole debate: this will be up to individual schools. As the heads made clear when they gave evidence to us last week, they will set a policy within the school and they may choose to designate teachers. With another head in another school—in a primary setting, for instance—the approach might be rather different. The point is not to prescribe that in law, but to trust the professionals to come up with a sensible approach, and that is what I understand Sir Alan to have said. The Association of Colleges says that it has consulted its members about the proposal. We have not mentioned them once in this debate, but colleges will have the same powers as schools, and they welcome the proposals.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

That is a good point.

The hon. Member for North West Durham is a highly esteemed member of the Education Committee, which unanimously agreed that it supported

“proposals in the Schools White Paper to extend powers relating to search and to clarify powers of restraint, in the interests of supporting teachers' authority in managing behaviour.”

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

If I may, I wish to put the Education Committee’s recommendation on record.

The Committee said:

“Guidance on use of powers to restrain should include specific advice on restraining pupils with Special Educational Needs or disabilities in the interests of protecting both pupils’ and teachers’ safety. School staff will only feel confident in using their powers if they are regularly trained and if they sense that they have the full support of school leaders in their use.”

Our cross-party Committee therefore supported the White Paper’s proposals to extend the powers of search, which is what the Bill broadly does.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

As I said earlier, I welcome the evidence in the report that the Education Committee produced, but that was based on a broad discussion of the powers in the White Paper. Does the hon. Gentleman agree that it is very important that when we get to the specifics of a proposal in a Bill, we should know in absolute detail whether the clause is workable? That is the point I am making in support of my desire to help teachers and head teachers to be able to do their job and maintain behaviour and discipline.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

The shadow Minister is right. The Opposition’s role is to ask questions about the actual applicability of the law, and our debate has been carried out in that spirit of examination.

The hon. Gentleman’s amendments suggest that there should be greater understanding of the definitions. I think that the Minister has said that the Government guidance on discipline runs to about 700 pages at the moment. That is clearly unworkable and unusable by professionals on the front line, so the Government are committed to reducing it. To inform this debate, it would be have been helpful if that guidance had been provided, and then a lot of the questions that have rightly been raised, particularly by Opposition Members, would better be able to be answered. However, the Minister will be able to inform us in due course.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I know that the Minister wants to make a start on his response, although I suspect that we might continue to discuss this topic on Thursday. I want to make it clear that, from the Opposition’s point of view, we support the simplification of the guidance, so long as it does not result in a dilution of the powers. That should be an ongoing part of the Government’s work. I support the hon. Member for Beverley and Holderness in saying that it would be very helpful if we could have a draft of the new guidance.

Photo of Graham Stuart Graham Stuart Chair, Education Committee, Chair, Education Committee

I agree. We could do with more clarity on definitions and guidance in general, perhaps specifically picked up with a consideration of the number of people training.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

We have had a wide-ranging and interesting debate about a large group of amendments. I will try to cover all the points raised, but I hope that hon. Members will forgive me if I inadvertently miss one or two.

The shadow Minister spoke about the teachers’ mantra of not smiling until Easter. I can understand that; Easter is when we finish the Committee stage of the Bill. I understand his sincerity about the importance of  discipline and good behaviour in schools. I suspect that his bark about the clause is louder than his bite, and that deep down he is a little more supportive of what the Government are trying to do to raise standards of behaviour in our schools than he purports on behalf of the Opposition.

The hon. Gentleman cited witnesses in the evidence sessions and comments about opposite sex searches. He also began to read a quote from Dr Moynihan but then stopped. Dr Moynihan said:

“extreme situations happen in schools and it is good to have the power to search a child if it is necessary.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 21, Q40.]

I shall speak first to amendment 10, and then to the other amendments in the group. I know that there is some common ground between Opposition and Government Members. We agree that many schools have very good behaviour and that most children will behave well if they are in a school in which there is a positive ethos and a strong behaviour policy that is communicated to staff, parents and pupils, and implemented consistently. That is one of Alan Steer’s mantras about consistency at all levels.

There remain, however, some substantial problems in our schools, and it was the evidence of those problems that prompted the Government to introduce the provisions. That evidence was provided by Ofsted’s figures, which show that in 2008-09, almost one in five secondary schools was judged as no better than satisfactory on standards of behaviour. We know that persistent disruptive behaviour accounts for about 30% of permanent exclusions from secondary schools, and that proportion has remained constant since data collection began, as has the rate of exclusion for assault against an adult or another pupil.

Head teachers and authorised members of school staff—referred to by the hon. Member for North West Durham as “designated members of school staff”—already have a statutory power to search pupils without their consent for knives, weapons, alcohol, controlled drugs and stolen items, and clause 2 extends that power to include any item that has been used, or is likely to be used, to commit an offence, injure a person or damage property. That ensures that teachers have the authority to take firm action to deal with a range of inappropriate items, and protects them from challenges to their authority from pupils or parents.

The clause also allows teachers to search for any item identified in the school rules as an item for which a search can be made. It strengthens their authority to enforce the school rules, and makes it clear to parents and pupils that those rules will be enforced. The requirement to list banned items in the rules means that parents and pupils will know with certainty which items may not be brought into school, and which items may be searched for.

Photo of Pat Glass Pat Glass Labour, North West Durham 6:45 pm, 8th March 2011

Does the Minister not anticipate problems with that? I have visited many schools, and in some the head teachers say, “No child in this school is allowed to have a mobile phone, and if I find one I’ll take it off them,” while in other equally outstanding schools they say, “I don’t mind mobile phones. As long as the children  keep them in their bags, I don’t have a problem.” The provision gives teachers a strong power to search a child for a mobile phone, if carrying one contravenes school rules. Is the Minister concerned about that, and does he consider it dangerous?

Photo of Nick Gibb Nick Gibb Minister of State (Education)

No. The powers are permissive, and the different approaches taken by different head teachers can continue. Some heads feel that they need the powers in the challenging circumstances that they face, and they want to make it clear that there is a new ethos in the school and that the school rules will be obeyed by all pupils at all times. We believe that the provision is a measured response to that demand, and enables heads and teachers to enforce the school rules.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

On behalf of the Front Bench, may I make it clear that we do not have a problem with head teachers deeming an item to be contraband—that is the term I used to use—with regard to school rules? It is absolutely fair, in general, to leave that to the discretion of school leaders. The issue, however, is the search powers in the Bill.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I am grateful for that clarification.

A search of a child should not be undertaken lightly, which is why the law already provides that searches may be undertaken only when the head teacher or an authorised member of staff has reasonable grounds for suspecting that a pupil might have a prohibited item with him or her, or in his or her possessions. There must also be safeguards regarding how searches are carried out, and that is why there are and should continue to be restrictions in relation to the gender of the searcher and the witness. Sometimes, however, a search needs to happen urgently, to take a dangerous item from a child, for example. Permitting opposite sex searches and searches without a witness, in the limited circumstances proposed under clause 2, strikes the right balance between providing teachers with a degree of flexibility to act in the interests of safety, and safeguarding the interests of both teachers and pupils. In practice, I believe teachers would undertake a search of a pupil of the opposite sex only on rare occasions. In the interests of safety, however, it is right, that the law provides flexibility. Presently, I shall provide some examples, for which hon. Members have asked.

Bullying remains a problem in our schools. I am sure that hon. Members will agree that pupils have the right to go to school without being bullied and parents have a right to expect that their children will be safe there. The Equality and Human Rights Commission has produced a report on bullying in schools, which states that almost two in 10 of all school students say they do not feel physically safe at school. It also reported that almost half of six to 10-year-olds and 14-year-olds said they had been bullied in school. Among primary school children who said that they were being bullied, four in 10 said that it was happening at least once a week. More than eight in 10 disabled pupils have been bullied at school, as have two in three lesbian, gay or transgender secondary school pupils, almost one in six of whom have received death threats. The scale of the problem is clear.

Inappropriate images are often used to bully and harass both pupils and staff. According to Bullying UK, approximately one in seven—14%—of young people have been threatened or harassed by mobile phone. A study by the Association of Teachers and Lecturers  found that one in seven teachers had been the victims of cyber-bullying by pupils and parents. Providing a clear power to examine and delete if necessary the images or files on an electronic device will ensure that teachers can deal promptly and effectively with such situations.

Photo of Meg Munn Meg Munn Labour, Sheffield, Heeley

I may be jumping the gun, but I am aware of the time and I do not wish to lose the point. Is the Minister saying that cyber-bullying and the need to search for a mobile phone is a situation that presents a serious risk, or will he provide other examples of such risk? I absolutely understand the concerns that were expressed by head teachers about cyber-bullying and such issues. I understand the need to deal with that situation and I accept that the clause, overall, responds to it, but I do not understand where the issue of urgency and serious risk comes into that.

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I will cite other examples, but, frankly, this is one. It may be that a child is about to put information on the internet and there is no time to wait until the end of the day, or wait for another member of staff to arrive before searching for it. Hon. Members should not underestimate the seriousness of cyber-bullying. Although I recognise concerns about privacy, it is essential that we do what we can to protect pupils and staff from being bullied or harassed with mobile phones and other such devices. The power will not enable teachers to go through pupils’ mobile phones deleting images on a whim, because they must have a good reason for doing so. They will be required to have regard to guidance from the Secretary of State on the matter.

Photo of Kevin Brennan Kevin Brennan Shadow Minister (Education)

I am grateful to the Minister, and he knows that we take cyber-bullying seriously. Indeed, we developed the first guidance on it while we were in government. Can he explain how any of the amendments in the group that is under discussion would have any influence over the deletion of images from mobile phones?

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I am trying to address amendment 10, which is about seeking evidence. I am giving some examples of the evidence of the serious state of behaviour problems and bullying in our schools and why the clause is needed. If teachers do not have a specific power to inspect images, a pupil who is engaged in cyber-bullying might go unpunished. Without a power to delete inappropriate images, any bullying or harassment for which the images might be used would simply be delayed until such time as the confiscated device was returned to its owner. That situation would be absurd. We do not expect teachers to hand back a knife or a bottle of whisky, why would we want them to hand back an inappropriate image, to be used to cause harm later?

It is important to stress that this is a power not a duty. Teachers do not have to search, but we simply cannot continue to allow a culture in some of our schools in which teachers are continually undermined by a minority of pupils because of a lack of powers necessary to tackle poor behaviour in the classrooms. The measures in the Bill send a strong message that teachers’ authority must be respected.

A witness heard by the Select Committee made that point very crisply. Daisy Christodoulou said that

“it’s not particularly that I want to search a pupil’s bag, but if there is a law and the school has the power to do so, it sends a message. That’s what I like about it. That message does get through to kids, and it makes them think.”

That point was also made by Brian Lightman:

“We are very happy with the message that is going out. It is an important message. In many ways, the message that the Government support school leaders in maintaining good discipline is more important than any legislation that the Government introduce...We feel that the searches are very welcome and necessary. We simply do not believe that that will be abused or that it is going too far.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 21, Q41.]

My hon. Friend the Member for East Surrey spelt out the support for the provisions very well when citing the reasons of a head teacher in his constituency.

Photo of Julie Hilling Julie Hilling Labour, Bolton West

Brian Lightman also said:

“That would be my strong advice. I would be quite happy to see that in the legislation…I would only do a search with a witness present...A member of the opposite sex without witnesses present—no, I would never recommend that.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 23-24, Q44, Q45, Q47.]

Photo of Nick Gibb Nick Gibb Minister of State (Education)

I agree. The Bill mentions:

“reasonably believes that there is a risk that serious harm will be caused to a person if the search is not carried out as a matter of urgency, and…in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex” as the pupil. Such provisions are not recommended as routine practice when there is poor discipline, but only in exceptional circumstances. I do not disagree with what Brian Lightman was saying.

I believe that there is ample evidence that the powers are necessary and we have introduced them in a proportionate way. Amendment 10, therefore, is unnecessary. We cannot say that we want high standards of behaviour in our schools and then create a culture in which teachers are unable to take what the public would regard as reasonable steps to achieve and maintain it.

I appreciate the concerns behind amendment 12. It is of course important that teachers consider the dignity of pupils when carrying out searches. Searches must only be carried out with good reason, and those reasons are all set out in legislation. I understand the additional issues arising when carrying out searches on certain pupils with special educational needs or disabilities. However, we believe that decisions about what training is offered—the subject of the amendment—to members of staff on searching pupils without consent are best made by individual schools in the light of their particular needs and the circumstances of both. It is worth remembering that head teachers are required to authorise members of staff to undertake a search. The purpose of that requirement is that the head teacher must be satisfied that the member of staff is competent to carry out a search, taking into account any training received by the member of staff.

Ordered, That the debate be now adjourned.—(Mark Hendrick.)

Adjourned till Thursday 10 March at Nine o’clock.