Education Bill

Perhaps I may start with some general comments about some of the themes that have emerged. I agree with what the noble Baroness, Lady Morris, said about her underlying point, consistency, and the difficulty that we as legislators have in translating what we are trying to do in classrooms so that teachers know where they stand. That links to the point again about clarity in guidance, to which I will come back later. My noble friend Lord Cormack, who has not spoken on the Education Bill previously, made a powerful speech about the importance of trust, which we all share. By the same token, some of the discussion today highlighted tensions between wanting to get to a position where we trust professionals more—and I think we would all agree with that—while wanting to have our own safeguards in place to ensure that in trusting them the things we most care about are protected. That is a difficult balance. My noble friend Lord Storey also threw in parents and lawyers for good measure. It is absolutely right that schools are operating in a far more complicated environment than was the case in the past. I very much recognise the description given by the noble Lord, Lord Peston, of the purpose of a school, which I think still holds true today. But they certainly have to operate in a far more complicated world where they are asked to do much more by society than was once the case. I recognise that there are anxieties, which I will attempt to address, about the extension of the powers on search. I see them as an attempt to provide greater space in a very small number of exceptional cases for professional judgment to be exercised by heads and teachers, and to try to enlarge the space where we can trust heads to make the judgments that they believe are right to safeguard the children in their care. There was broad agreement that we want head teachers and teachers to be able to ensure the safety of the children. In fact, it is important to say that most schools are safe places in which children can learn. It is important to get that in proportion and not to imagine that we are confronted with a problem that does not exist—it is important to focus on the problem that does exist. When the previous Government introduced searching legislation, they recognised that unfortunately there are instances where children have items that can cause harm or injury to themselves or to others. Under existing law, members of school or college staff can search for a number of harmful items, including knives and weapons, alcohol, illegal drugs and stolen items. We are proposing a small extension to those powers so that teachers can keep all potentially harmful items out of the classroom. I want to set out briefly, on the record, the safeguards within the legislation that ensure these powers are used appropriately. A search of a student without their consent can only be carried out in certain circumstances. First, the staff member conducting the search must be designated by the head teacher or the principal. I agree that the head teacher should consider the skills of any staff member they are designating, and I am sure that most will do so. In the light of views that were expressed in the debate on this issue in Committee, we have taken on board the recommendation that, when designating a member of staff, the head teacher should consider whether that member of staff needs any additional training. That recommendation is included in the department’s published advice to schools. Secondly, a member of staff must reasonably suspect that the pupil is in possession of a prohibited item. A pupil cannot be randomly searched on a whim. Thirdly, staff may not require the student to remove any clothing other than outer clothing. These conditions—which are in law—will remain unchanged. It is also the case that a search can only be carried out by someone of the same sex as the student and in the presence of a witness except—and this is the change which we are seeking to make—in certain emergency situations. The requirement that the searcher is the same sex as the pupil and that a witness is present will continue to apply in nearly all searches, as a number of noble Lords have argued. Where it is practical to summon a staff member of the same sex as the pupil and a witness then a teacher wishing to conduct a search must do so. There is no disagreement at all on that. The provisions in this clause are not about the vast majority of cases. They are about a very small number of cases—we hope—where the teacher reasonably believes that there is a risk of serious harm to a person if the search is not carried out as a matter of urgency and it is not reasonably practicable, in the time available, for the search to be carried out by a person of the same sex or with a witness. It does not provide sweeping powers to conduct searches without a witness. Indeed, as the noble Baroness, Lady Massey, pointed out, teachers would shy away from searching without a witness, and there is no provision which would force a teacher to carry out a search if they felt uncomfortable in doing so. We argue that the actual purpose of the clause is to protect teachers in the cases where they are acting to prevent serious harm and there is no time to summon others. It aims to provide greater clarity of the kind that a number of noble Lords have been looking for. I accept that these cases will be rare, but at Committee stage we discussed a couple of instances where we could see that this power might be needed. The question is whether a teacher, acting as a matter of urgency to prevent a risk of serious harm to a person, or to themselves, and when there is no time to summon someone of the same sex as the pupil to carry out the search, or no time to summon a witness, should have statutory protection in carrying out that search. The Government believe that it is right to give this clear statutory protection to members of staff, so that they can remain within the law when they find themselves in difficult situations and take sensible action in the interests of their pupils. We believe that this emergency power is a modest and sensible adjustment to the current provision, and it is likely to be used very rarely. It is an important adjustment to protect members of staff confronted with such a situation. We had an interesting debate on Amendment 8, tabled by my noble friend Lady Walmsley, about the age of pupils. My noble friend is not just concerned about children; she is also concerned to protect teachers against unfounded allegations. The requirement for a search to be conducted by a member of staff who is the same sex as the pupil, and in the presence of a witness, will continue to apply in the vast majority of cases. It is only a small number of emergency cases that we are talking about here. The noble Baroness, Lady Massey, talked about teachers who had contacted her with concerns and, as I have just said, it is absolutely the case that no teacher can be required to conduct a search. Where a teacher does act in those circumstances, they should have statutory protection. As the Association of School and College Leaders said: "““We also welcome changes allowing searches to be carried out by a member of the opposite gender or without witnesses in specified, urgent situations””." The Joint Committee on Human Rights considered the safeguards in relation to this aspect of the clause and raised no concerns. It said we should make clear that the students’ expectation of privacy increases as they get older, and we have reflected this in the draft guidance for schools which I circulated last week. I would welcome any comments from any noble Lords on that draft. The noble Lord, Lord Sutherland of Houndwood, the noble Baroness, Lady Massey, and my noble friend Lady Walmsley, as well as other noble Lords, raised points about the guidance in general. We have circulated draft guidance and it is out for consultation. My noble friend Lady Walmsley made a number of suggestions which I would be happy to discuss with her. I also welcome her willingness to talk to my officials and see if there are ways we can improve the guidance further. I accept her kind offer. So far as training is concerned, on Amendment 6, it is important that school staff have appropriate training for the tasks they are expected to undertake. We have amended our advice to schools to make that point clear in relation to the search powers. We have included a specific recommendation in the advice that, alongside consideration of the training requirements of staff, head teachers will also have to consider the needs of their pupils. So far as training for members of staff who may search a pupil with disabilities or special educational needs is concerned, the power to search has existed for some years and I am not aware of any evidence that there has been a specific problem in that area. We are not convinced that teachers need a law to remind them of the utmost importance of respecting and maintaining a disabled child’s—or indeed any child’s—dignity, and I am sure all Members of the House would agree. As we set out in our recent Green Paper, we are introducing a number of measures to support the school workforce in identifying and responding to the needs of disabled pupils and those with SEN. This includes strengthening the focus on SEN in initial teacher training, which relates to a point made by my noble friend Lord Elton, and increasing the number of placements in special schools during initial training. We are also improving the CPD offer to ensure teachers can access support in meeting the needs of young people with specific impairments such as autism or those with behavioural, emotional and social difficulties. That should help to ensure that teachers are confident that they can respond appropriately to any behavioural issues, taking into account the specific needs of the pupil. Amendment 11 separately relates to colleges. Finally, we had a set of amendments from the noble Baroness, Lady Jones of Whitchurch, about school rules guidance. The purpose of our changes to allow schools to identify, in their school rules, items which may be searched for is to ensure that all pupils can learn in a calm and orderly environment. It is intended to capture those items which, although not necessarily harmful, can cause disruption in lessons. I understand that noble Lords are concerned that we have not sought to restrict or limit the types of items which might be searched for under the school rules provisions, but I believe that there are appropriate safeguards in place. First of all, the school rules are part of the school’s statutory behaviour policy and legislation ensures that staff, pupils and parents have a role to play in its development. Secondly, requiring schools to list the items in their school rules which are liable for a search under these powers ensures that pupils and parents will know which items are unacceptable in school and which may be searched for, so pupils will know not to bring these items into school. I believe it is right that we should allow schools the freedom to judge which items they need to search for in order to maintain good order and discipline. That point has been made by a number of noble Lords. We had a discussion about mobile phones, which is an example in point. Under existing rules rather than because of any changes we are making, schools are able to ban mobile phones if they think that that is right. They know best which items are of concern to them in their particular circumstance and they need to be able to respond when, for example, there is a craze for using a new type of toy in a disruptive way. While I accept the need for guidance on searching overall, and we are happy to discuss the wording, I do not believe that guidance from the Secretary of State is necessary on specific banned items. We can trust head teachers to judge what is most appropriate in their particular school and to set sensible rules. Some may welcome mobile phones, and indeed we had a debate in Committee in which the noble Lord, Lord Knight, argued strongly about the educational role that some technology can play, but other technology may not. We all say we want to trust professionals, but if we are going to do that, we should allow them to decide what should be in their school rules and not leave it to Michael Gove or Stephen Twigg. While we were talking about mobile phones, my noble friend Lady Benjamin raised an important point about powers to delete. We know that the reason behind this question is that there is a problem with bullying by mobile phone, and that is something we want to address. I agree with her in the counterexample she gave, where one would want to be clear that schools were exercising sensible judgment. She gave a good example of where it would not be sensible to delete. We need to pick up on some of those points in our broader discussions about guidance. At the heart of the difference between us and the party opposite is whether we can accept, as the Government believe, that with proper safeguards there can be a small number of emergency cases where we can trust the professionalism of teachers to exercise their judgment and keep children safe. To paraphrase a point made by the noble Lord, Lord Sutherland of Houndwood, in Committee: do we think that we can leave a small space for the professionalism of heads and teachers? If we are serious about extending trust, I believe that we have to. That is the Government’s position on these important powers, and I urge the noble Baroness to withdraw her amendment.