Apprenticeships, Skills, Children and Learning Bill

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Mr. Laws: The Minister has usefully corrected the evidence she gave the Committee on a page of the report that I do not have—in fairness, she might have corrected it later in our proceedings. Will she indicate why she has rejected the general power to search that Sir Alan Steer recommended?
Sarah McCarthy-Fry: I will get to that point if the hon. Gentleman is patient and does not jump up to intervene.
Both alcohol and illegal drugs were specified by Sir Alan Steer, following consultation with fellow practitioners, as items used by pupils to harm themselves. Both will be specified for the first time under the new search powers, together with stolen property, which Sir Alan also highlighted as an issue.
Items contrary to a school’s behaviour policy, as suggested by amendments 90 and 95, were also included in Sir Alan’s recommendation on the extension of the search powers, and we considered that when drafting the clause. I agree that we could have had a longer list or a more general power, as the amendments suggest, but there are clear reasons for not doing so. First, we want to ensure that any potential interference in a pupil’s rights under article 8 of the European convention on human rights is reasonable and proportionate. Secondly, alcohol, controlled drugs and stolen property are the items that schools are most likely to want to search for.
The hon. Gentleman asked me what data we had on that. In 2006-07, there were 400 permanent exclusions relating to drugs and alcohol and 210 permanent exclusions for theft. Of the fixed-period exclusions recorded, 8,180 were related to drugs and alcohol and 9,440 to theft. Bullying data from the longitudinal survey of young people in England tell us that 3 per cent. of 13 to 14-year-olds had been made to hand over money or possessions to bullies in the previous 12 months. According to the Home Office’s 2006 crime survey, 9 per cent. of 10 to 17-year-olds spoken to reported stealing something at school in the previous 12 months. In a survey of 1,500 teachers for the NUT published in 2008, 20 per cent. of respondents reported witnessing possession of drugs within their school in the preceding year, and over 20 per cent. reported witnessing the possession of an offensive weapon in the preceding year.
The hon. Gentleman mentioned pornography, but we simply do not have evidence that a power to search for pornography is needed. Schools can, of course, search young people with their consent, and if pornography is found, they have the power to confiscate it. His proposal would allow search without consent.
Mr. Laws: I apologise if I missed part of the Minister’s speech as I try to juggle these different amendments, but did she refer a moment ago to evidence on the number of occasions on which alcohol was searched for and found in schools in the past few years?
Mr. Gibb: How will schools find a child in possession of an item prohibited by the school rules if they are not permitted to search for them under the provisions of this clause?
Sarah McCarthy-Fry: I am making the point that they have certain powers without the power to search without consent. They can instruct a pupil to turn out their pockets or bag. They can confiscate, retain or destroy items if they find them. School and college staff need to be clear about what they can and cannot search for, otherwise we risk causing confusion and uncertainty. We will, of course, ensure that our new guidance gives staff the clarity that they need to use the new powers appropriately and professionally.
I want to turn to amendment 337 because I wish to assure hon. Members that it would be permissible under the Data Protection Act for school staff to view CCTV footage to establish whether a pupil has brought a prohibited item into school, so there is no need to specify that in the Bill. For the avoidance of doubt we will make this clear in our revised guidance. I hope that the hon. Gentlemen will not press their amendments.
Mr. Laws: I thank the Minister for giving a—not entirely—full response to the Committee, particularly in the light of the length of time for which she has had to lead for the Government on the Bill in this sitting and the wide range of issues she has had to deal with. She has been at all times extremely helpful to the Committee. However, I still have a couple of concerns about the Government’s position.
First, I am not clear—again I apologise if I missed a part of the hon. Lady’s exposition—why the Government have decided to go down this route. My recollection from the Committee hearing when we took evidence from the Minister—and I confess I do not have the relevant quote handy—was that there was some indication that there might be a legal concern about the general power to search, which was why I questioned the Minister for Schools and Learners about this. The hon. Lady did touch on the Government’s reasons for making the judgment, but she did not say whether this was primarily a legal judgment, and whether she felt the Government might be open to challenge if the power to search were too wide, or she was making her judgment because she thinks that the rights, freedoms, protections and privacy of youngsters should be given as high a priority as possible and she thus wished to constrain the number of proscribed items to the priority ones. I would be grateful if she could clarify that, as it is obviously enormously significant. I would also be grateful if she could confirm that there is nothing in this particular group of Opposition amendments that would be illegal. I ask because it seems to me that the amendments are so obviously superior to the Government’s position that I cannot help but feel that the Minister must think that they might be perceived to be illegal and thus that they would not stand up to the scrutiny that exists in relation to human rights these days, which is admittedly quite extensive. If that is the case, we need to know that here and now.
I think that we are bound to return to this issue, either on Report or in another place. We know that our noble Friends at the other end of the corridor do a very thorough job of scrutinising Bills and that they also have a great deal of legal expertise. I think that they will want their debate to be informed by legal realities rather than the instincts of a Minister. They will want to know the fundamental objections to this different approach.
My second concern about the Minister’s position relates to the evidence that she is offering to the Committee. I am not aware that she cited any particular statistics in relation to pornography, be it hard or otherwise. I am not clear whether that was because there is a lack of data on the subject, or because the data that exist indicate that there have not been many occasions when these powers have been used. However, I wonder if part of the reason why she is not able to cite any evidence is that information on measures that she has discussed and referred to in relation to other proscribed items is more likely to be collected by schools and, potentially, local authorities. In other words, is it the case that although pornography—hard or soft—is a very serious matter, some head teachers might be seeking to deal with it in a way that is well short of the types of sanctions that might trigger a reporting process?
When the Minister cited evidence about the items that she selected for this particular measure, I think that she indicated that, in relation to drugs and alcohol, she was talking about permanent exclusions, although I might be wrong and she may have referred to temporary exclusions—perhaps she will clarify that point. However, she was certainly relying on exclusions as a proxy for the number of cases of drug and alcohol abuse. It may be the case that that proxy is reliable for capturing some sense of the scale of drug and alcohol problems, but not for capturing some sense of the scale of the problems relating to pornography. In fact, I might have misquoted the Minister, in which case she may want to correct me.
I think that the Minister also referred to evidence on school staff witnessing drug incidents, so she was relying on data reported by staff members. It may have been that the exclusions related to weapons. If the Minister could confirm that that was the case, that would be useful.
My point stands, however, because I am not quite sure that the evidential basis that the Government are using is reliable. Also, I am unsure that what we are not picking up from the statistics that the Minister cited is the propensity for particular prohibited items—or, as it may be, non-prohibited items—to be identified by schools as serious.
I think that I was mildly convinced by the Minister’s comments about weapons. I was not quick enough to write down precisely what she said, but she appeared to indicate that the legislation relating to weapons is quite widely drawn. Although I was trying to think of a way of catching her out, it seemed to me that most of the items that sprang immediately into my mind might be covered by the definition of “weapons”. Having said that, given the risk of weaponry developing in unexpected ways, I would want to reflect on that definition before the later stages of the Bill.
However, I am afraid that I still cannot accept the Minister’s judgment that schools and head teachers should not be empowered to search for soft or hard pornography. I repeat the point that in the media, in the Chamber and among our constituents, there will be amazement that the Government are prepared to pass legislation that prohibits a series of items, including alcopops and cider, but that leaves teachers and head teachers absolutely powerless to intervene when they think that hard pornography is being marketed or spread throughout a school by a student. That is a deeply irresponsible position for the Government to take, and it will cause great concern among head teachers and governing bodies throughout the country.
4.15 am
Mr. Gibb: I listened carefully to the hon. Member for Yeovil and to the Minister. The latter recited the definition of a weapon. I presume that I missed the citation, but I presume that she cited the Prevention of Crime Act 1953—the clause refers to its definition of an offensive weapon. If my interpretation is right, she gave quite a wide definition, as the hon. Gentleman said, to include anything that would essentially cause injury—the Minister used those words—but not necessarily cause harm.
I am concerned about that because more things than items that could fall within a definition of an offensive weapon can cause harm. Some things may well, from what I heard of the Minister’s definition—it sounded as though she said “things like poisons”—fall within a definition of an offensive weapon, although it is not entirely clear to me as a layman. Items other than pornography could be harmful to children in schools, such as violent video games. Extreme violent video or computer games could well have been banned by the school and they could clearly cause harm, especially to young children. Teachers should be able to search for such things if children are suspected of having them in their possession.
I was not convinced by the Minister’s argument—I suspect she was not convinced either—because she carefully used the phrase “cause injury” and deliberately missed out the word “harm”. I am therefore minded to press amendment 209 to a Division. To remind the Committee, it refers to a situation in which a teacher
“has reasonable grounds for suspecting that a pupil at the school may have an item that, in the judgement of a member of staff, may present harm to other pupils, staff or teachers”.
The Home Secretary referred to such situations when she said that some people over-interpreted the Human Rights Act 1998. She said that people erred on the side of caution—jobsworths and others prevented people from, say, holding events on the grounds that they might contravene the Act. The Minister is falling into that trap by saying that giving teachers the power to search for items that have been banned by the school rules might contravene the 1998 Act or the convention. I find that difficult to believe, so I should like look again at what she said.
Mr. Laws: Is the hon. Gentleman hopeful that the Minister will respond to some of the points that were raised, particularly about the legal questions attendant to the proposed amendments and the Government’s attitude? It would be enormously helpful to us if the Government put those on the record, not only so that we can make judgments today, but on Report and when the Bill goes to another place.
Mr. Gibb: The hon. Gentleman makes a valid point, but alas, I am not hopeful—and after seeing the Minister’s expression, I am even less hopeful. I would like to think about it further and, perhaps, come back to the subject of whether school rules can be enforced through search powers a little later. For the moment, I would like to press amendment 209, regarding items that might cause harm to pupils, staff or teachers, to a Division. Teachers should be able to search for such items if they suspect that they are in the possession of a pupil at the school.
Question put, That the amendment be made.
The Committee divided: Ayes 3, Noes 8.
Division No. 43]
Gibb, Mr. Nick
Laws, Mr. David
Wiggin, Bill
Blackman, Liz
Butler, Ms Dawn
Creagh, Mary
Hodgson, Mrs. Sharon
Knight, rh Jim
McCarthy-Fry, Sarah
Simon, Mr. Siôn
Thornberry, Emily
Question accordingly negatived.
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