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|©Parliamentary copyright||Prepared 9th March 2011|
Publications on the internet
The Committee consisted of the following Members:
Sarah Thatcher, Richard Ward, Committee Clerks
† attended the Committee
The amendment’s purpose, therefore, is to provide assurance to those whose information might be used to determine their eligibility for early years provision that such information will not be disclosed unnecessarily. Under the clause, early years entitlements will now be based not just on age, which is simple to determine, but on need and the household or family’s financial situation. That might require confidential and sensitive information to be released to allow an assessment of eligibility to be made.
That is not a bad thing; it is certainly important that such information can be shared appropriately in order to ensure that people who are eligible to an entitlement can access provision. We have no fundamental objection in principle to Government taking that approach. When we were in Government, we were obviously keen to ensure that information could be appropriately shared in that way. However, it is appropriate to probe the Government on clause 1 in order to see what it means. Information can be passed to the Secretary of State, the local authority or a contractor employed to determine eligibility. That has attracted some concern from outside organisations. For example, the NASUWT has said that it is concerned that the provision could put at risk the security of sensitive data.
A person who wrongly discloses confidential information under proposed new section 13A has a defence against criminal prosecution if they claim that they believed when doing so that the disclosure was lawful. The amendment would remove that defence. Will the Minister explain to the Committee why it was necessary to put the provision into the Bill, what the Government’s intentions are and what the implications are for the security of the information that people provide in that way?
The Minister of State, Department for Education (Mr Nick Gibb): Welcome back after our short break, Mr Williams. Amendment 9, as the hon. Member for Cardiff West said, would amend proposed new section 13B to the Childcare Act 2006 by inserting the word “not”. It is a classic Opposition amendment to insert the word “not” into the Government’s proposed provisions. I am sure that I have done so on many occasions during the past 13 years.
New sections 13A and 13B support the extension of free early education to disadvantaged children, and ensure that information about financial circumstances can be supplied and used for the purposes of determining eligibility for the free provision, making it quicker and easier to establish eligibility. The provisions are modelled on those in the Education Act 2005, under which information is already shared in that way for the purposes of determining eligibility for free school meals.
The Government take the protection of people’s personal information very seriously. The Data Protection Act 1998, which was introduced by the previous Administration, provides protection for people in relation to their personal data, and that Act arguably provides solid protection. We believe that because of the sensitive nature of the information about financial circumstances being used in this case, and the sharing of it between Departments and local authorities, those affected should have even greater protection. Judging by the hon. Gentleman’s opening remarks, he shares that view.
That is why we want new section 13B, which would make unauthorised disclosure of information obtained for the purposes of determining eligibility for free early years provision a serious criminal offence. New section 13B(4) states;
Amendment 9 would remove the possible defence for a person charged with that offence to show that they reasonably believed the disclosure to be lawful. It could thus result in an official who makes an honest mistake receiving a criminal conviction. The Committee may wish to be aware that that defence is also contained in the relevant provisions relating to free school meals data, so the result of the amendment would be to make the law on free early years provision more draconian than the equivalent information-sharing legislation for free school meals. I see no reason to justify the inconsistency of different legal provisions relating to determining eligibility for free early years provision for two-year-olds compared with determining eligibility for free school meals for older children.
Kevin Brennan: Does the Minister know of any practical examples since that provision was introduced when that defence was actively called into use as a result of the inadvertent or improper but not illegal use of information in that way.
Mr Gibb: I am grateful for that intervention. I was seeking inspiration while the hon. Gentleman was speaking, but none came, so I shall write to the hon. Gentleman. We have had the provisions covering free school meals
Hon Members will appreciate that ultimately it will be for the courts to decide whether someone reasonably believed that they were allowed to disclose the information, or whether a criminal conviction is appropriate in the circumstances. I apologise for not being able to supply the hon. Gentleman with examples in the time scale available, but I hope that given my assurance that I will write to him and my explanation, I can persuade him to withdraw his amendment.
Kevin Brennan: I thank the Minister for his response, and for his commitment to write to me with any examples of how the current law has been working on disclosure of information on free school meals. I said that this is a probing amendment to understand the Government’s thinking, and I beg to ask leave to withdraw the amendment.
Mr Gibb: Our debates so far have had been wide-ranging, so I shall not detain the Committee. Clause 1 confirms the Government’s commitment to investing in early years provision. No one could argue that it is not the right thing to do. The evidence clearly demonstrates that a lower proportion of young children from disadvantaged backgrounds reach a good level of development at the age of five compared with other groups, and that is discernible throughout their school life. Pupils who start in the lowest 20% of attainment at the age of five are six times more likely to be in the bottom 20% at the age of seven than their peers. One thing that has been shown to close that gap by the age of five is participation in high-quality part-time early education, which significantly benefits disadvantaged children.
Mr Graham Stuart (Beverley and Holderness) (Con): The Minister is making a powerful point, and I believe that there is cross-party support for the initiative. May I again press him to give some idea of what he hopes for? Does he have any idea, statistically or in percentage terms, how to reduce the number of children who turn up at school who are not school-ready as a result of this? Perhaps he could widen his remarks to talk about payment by results, an outcomes-based system, and whether it would fit within any such review.
Mr Gibb: I am tempted to be drawn down the avenue suggested by my hon. Friend, but I would prefer not to pre-empt the Clare Tickell review, which will cover all the issues he raises. I have my own views about what counts as school-ready, but I do not want to discuss them in advance of the publication of the Tickell review. All members of the Committee will have a view about children being able to sit quietly, hold a crayon, have some phonemic awareness and be able to count and so on. We can talk at length about all those things in due course.
Boosting development at the start of school can help young children achieve and flourish at primary school and beyond. Indeed, a study published in February by the OECD found that children that had attended pre-school were likely to be better readers at 15 than those that had not. That is why we have committed significant levels of funding to the provision of free early education for disadvantaged two-year-olds, and we are making it an entitlement by creating a statutory duty under the Bill.
We also want to make it as easy as possible for local authorities to identify the children whom this provision is intended to benefit the most. That is why the clause enables Departments to share data with local authorities, as they do now to assess eligibility for free school meals. We intend to reduce administrative burdens on local authorities, reduce the risk of fraud and ensure that children who really need this extra provision get it.
Kevin Brennan: As we heard during our debates on the amendments, the Opposition support the extension of free early years provision for disadvantaged two-year-olds. However, I wish to check a few things with the Minister.
In particular, I wonder whether he will tell us a little more about the future of the code of practice on early years provision, which is directly relevant to the clause and the way in which it is likely to be implemented. The statutory guidance issued under section 7 of the 2006 Act, which I presume will form the basis of the statutory guidance under new section 7(3), is known as the “Code of practice for local authorities on delivery of free Early Years provision for three- and four-year-olds”. I have a copy of it.
The Minister will know that the consultation on revising the code was conducted early last year under the Labour Government and was confirmed by the new Administration in September 2010. A remaining matter of controversy, however, was the desire by some nursery providers to make it a condition that in order to obtain the free entitlement, parents must buy child care outside the 15 hours a week. They claim that the standard rate for the free entitlement causes them to lose money, which they must recoup by charging additional amounts during other hours.
I know that the Minister is an avid reader of Nursery World, so he will be aware that on 23 February 2011 it reported that the Government will launch a review of the code of practice in the next few weeks. Such a review is directly relevant to our consideration of the clause, so will he tell us the thinking behind that?
When the Labour party was in government, it began the process of giving free places to two-year-olds, which, at first, was for 12,000 youngsters in deprived areas. In the children’s plan of 2007, we committed to investing £100 million to extend the offer of up to 15 hours of free early education to 20,000 two-year-olds in the most disadvantaged communities. The Government have committed to continuing the previous Government’s direction of travel.
The Minister will be aware that last year the former Secretary of State for Children, Schools and Families—indeed, the former shadow Education Secretary—my right hon. Friend the Member for Morley and Outwood
I would like to put on the record, however, that Opposition Members are deeply concerned that any positive moves under the clause might well be undermined by the Government’s failure to protect Sure Start. We shall watch that situation closely, because it is a common recurring theme that the Government take a lot away to give a little bit back. We are concerned about the potential cuts that are emerging around Sure Start and closures to its centres. The measure might leaven the impact of those, but result, nevertheless, in an overall diminution of early years provision, which we would oppose. I would like to hear from the Minister on the code of practice, but, broadly, we support the clause.
Mr Stuart: In my few remarks on the stand part debate, I reiterate how welcome the provision is. Looking at the next four years—and, obviously, from the beginning of the coming financial year, the entitlement and provision build up—the additional cost of the provision for disadvantaged two-year-olds will be £998 million, if my arithmetic is correct. That is a £1 billion additional commitment in early years. Such a commitment—and provision—was never made under the previous Government in much more benign economic times. [ Interruption. ] Notwithstanding the tutting of the Labour Whip, the hon. Member for Preston, it is worth putting that on the record and celebrating it. It is a point worth making because of the financial circumstances in which the Government find themselves. It is a £1 billion commitment to the poorest two-year-olds, which is in line with the research. I give way to the hon. Gentleman, who doubtless will issue a mea culpa on the failure to introduce such provision in recent years.
Mark Hendrick (Preston) (Lab/Co-op): I wonder whether, after the local authorities have set their budgets, the hon. Gentleman will be instructing his Select Committee to determine how much money is being spent on children in early years once the cuts the authorities will have made to children’s centres and Sure Start projects up and down the country are offset against the money the Government are giving to two-year-olds.
Mr Stuart: The hon. Gentleman knows that that point would be a lot stronger if, first and foremost, a mea culpa on the financial situation had come, rather than a denial. He does make an interesting point, however, which is why I am focused on highlighting those councils that do not do everything possible to protect the front line.
It gave me great pleasure to visit the Sure Start children’s centres in my constituency—services that are not always easy to deliver in a rural area—and to see the hard work of the staff therein, with the support of the council. The Conservative council in the East Riding of Yorkshire has now committed to maintaining all those centres. However, the hon. Gentleman will no doubt share with me the view that it is not about maintaining the buildings, but delivering high-quality services from
While the Opposition are questioning whether a future Government will reduce the entitlement, personally I do not want to see us, at this level of government, fixing such entitlement. I would rather see payment by results and a focus on outcomes. If we can construct such a system—there is a lot of work to do down the road, and we have to hear from the Tickell review—personally, sounding radical and wild, I would rather see the three and four-year-old entitlement, and this one, scrapped. We would need to create a system of incentives that genuinely motivated and drove local government to be more effective in changing the life chances of the children who, currently, are too often left behind.
The previous Government spent a lot of money and they were genuinely committed to closing the gap, but that gap all too often did not close. If we look at a crude proxy of the education system and have to pick one thing to see whether it worked, I would pick the number of people who end up on the dole at the end of that period of compulsory education. What happened? In 10 years of economic growth that number did not drop, and once the credit crunch came, it went up. To an extent, the policy I am celebrating today is an extension of the previous Government’s efforts. As part of a genuine effort by all parties, we are continuing in a vein similar to the previous Government; yet so far, we have not really delivered the change we want for those who most need the help.
Meg Munn (Sheffield, Heeley) (Lab/Co-op): I have two brief questions for the hon. Gentleman. If we moved to the system he is suggesting, how would he deal with areas that were not performing well? Do we let those children fall behind? Secondly, does he honestly think we have had the benefit of nursery education for three and four-year-olds for long enough to judge the outcome?
Mr Stuart: The hon. Lady makes a good point, in particular her latter one. One of the things I enjoyed when I was in Finland to see its education system was someone in the central Department saying, “We have been trying to do this for 10 years, and we haven’t really made the progress we should have done. We are going to keep trying, and trying harder.” I compare that with the UK where, every two years, we seem to have a fresh set of Ministers and a new, eye-catching initiative—off they go, changing the system. That needs to be worked out.
The hon. Lady quite rightly made a point earlier about quality, which we agree on. I believe that it is about consistency of purpose and trying endlessly to make systems work better. I am not sure that crude provision such as this, dictated by us from the centre, is the right way to go. Another system is surely possible. If we believe in localism, and that those closer to the front line are in a better position to meet the needs of our local communities, then could we not find a better system? I am not saying that we should move there right now, but I hope to see from the Tickell review and perhaps other work that we could move to such a system. It would need piloting, and it would need a lot
The hon. Lady’s first point was on what we would do with areas that did not work so well. Right now we have a system which is failing the poorest and most vulnerable. As a state, we have a particularly poor record compared with other countries in dealing with those at the bottom of our society educationally and socially, and that comes at the end of 13 years of a genuinely committed Labour Government who invested a huge amount of money in that area. The hon. Lady is right to suggest that we have not seen all the fruits of that yet and that this is not the time to abandon initiatives before we have given them sufficient time, but we must also recognise that we have not seen the progress we would like. The provision is welcome, expensive and continues what the previous Government did, but I wonder whether we may need something more radical in future, and I hope that we will be able to advance that.
The shadow Minister made a point about a diminution in early years work. I hope that that will not be the case. The reduction in the number of health visitors made a big difference—the health visitor service stopped being universal, so some of the checks on children in the early months of life are not happening at the same rate as they used to. That could mean that children, whether they are from a poorer background or not, are not having their needs assessed early enough in order for early intervention to make a difference.
I hope that we will see an improvement as a result of the combination of the increase in health visitors to 4,200—many of whom may be based near children’s centres—and the extension under discussion, despite the reductions in local government expenditure. From my conversations with people in East Riding, I am confident that, with the additional health visitors, additional money from the health budget and this £1 billion promise, and if councils focus on delivering rather than on political shroud waving, it should be possible to improve services over the next few years, which is what Members throughout the House all devoutly wish for.
Meg Munn: Of course, I support clause 1 and it is clear why, because it is, as the hon. Gentleman has just said, exactly what the Labour Government had planned to do. It is an extension of what had been set out. One of the drawbacks of the discussion so far—this is why it is important to have this clause stand part debate—is that we have been dealing with the issue in isolation and focusing on a small cohort of two-year-olds. The reality is that the policy was part of a much wider strategy for education, care and, indeed, the family, which was brought in over 13 years.
I worked in children’s services in 1997, so I know for a fact that, at that time, there was very little by way of child care, be it nurseries, childminders or any sort of early education, available for anyone. What did exist—and I remember this from the city in which I worked at the time—was often concentrated in just one part of the city, usually in the area where parents could afford to pay for that child care. We have been talking about funding child care and early education for two-year-olds from deprived backgrounds so that they have that opportunity, but many parents, whether through the necessity of going out to work or through choice,
I was Minister for Women when we introduced free care for three and four-year-olds. It was about 10 or 12 hours per week at the time and I was struck by the number of women whom I met in various settings throughout the country who told me that, for those of them who stayed at home for whatever reason, those hours suddenly gave them time to do something. They could start thinking about gaining some skills, going back to work, or building up the experience that would enable them to get back into work. We know that parents not being able to work keeps families in poverty.
So early years provision is not only about the benefits and the opportunities that we provide for the child, and whether that child is school ready, but about the whole family. Child care is part of the same package as all the other benefits, child care tax credits, child tax credits and support for working families on low incomes. It is a big mistake to see it in separate terms. I understand why it appears in the Bill in this way, but I would like to hear what the Minister’s vision is. Where does this fit into the coalition Government’s vision for children and families?
It is not just a question of whether children do well immediately—the hon. Member for Beverley and Holderness has accepted that we have not yet seen the outcomes from the input into children at this early stage—but it makes a difference in communities. It is party politics to have a go at each other. We all do it and we say, “You failed,” or “You didn’t do well,” but child care centres where families and young people go with their children, where a wide range of support is available—such as support for breastfeeding, and the opportunity for young women who have never really had a job to train to become child care workers, which happens at one of my centres—transform not only families but communities. I will defend the previous Government’s record because such centres have transformed communities in my constituency, and they will continue to transform them. We will not see the results tomorrow, in five years’ time or in 10 years’ time. We will see it when the children who have been getting these experiences in Sure Start and nursery do not have children at such a young age themselves but go on to become responsible parents. We will see the benefits of the scheme long into the future.
Richard Fuller (Bedford) (Con): The hon. Lady has made some good points. Does she accept that a great deal of consensus of support exists for Sure Start centres on both sides of the Committee? If that is true, does she think that sometimes in that partisan discussion about cuts we could find a better accommodation on Sure Start centres, so that the excellent work that the previous Government did, which is continued in the Bill, can be protected from rougher partisan politics?
Meg Munn: The hon. Gentleman makes an important point. One of the successes that I see of 13 years of Labour Government is that we generally all think that Sure Start is a good thing. It was a flagship policy, which people supported. The fact that the Government, in the face of financial difficulties—we disagree about how those arose—have chosen to include it in the Bill, and to continue to fund it, is a good thing. We must also recognise we need to do more than just saying that a policy is a good thing. The Minister said that earlier when I raised the issue of the support workers. Heaven knows whether we would call them front-line workers, because they are not delivering the service but they are helping and supporting the quality of that service. They may well get their jobs cut. We can agree about good policy, and we can agree about good services, but we also have to will the means to do it. If the Government think, as they have done with this policy, that it should be given priority and should be funded, they can ring- fence it.
The Minister for Further Education, Skills and Lifelong Learning (Mr John Hayes): A point was made earlier, which is highly relevant to the Bill, that there is a growing consensus about the significance of early years provision and its subsequent effects, and that has been acknowledged by the shadow Minister. Is that not a powerful signal, which the Bill sends out and which we all as a Committee need to celebrate?
Meg Munn: Signals are all very well, and we will spend a great deal of time on signals when discussing discipline. They are fine, but we need money to deliver the services. If the Government believe that we can ring-fence and provide an entitlement to certain things, they have to answer the question why they have not ring-fenced the money for Sure Start. They could have done that. I accept that there are all sorts of reasons why we do not ring-fence. Indeed, the previous Government moved away from it to allow decisions to be made at a local level, but in this situation, with the money under pressure, the Government could have chosen to ring-fence more money for Sure Start.
I shall not get into the debate on cuts, and how deep and how fast they are, because what my party thinks about that is well known. I want to put firmly on record that the matter is important, but it is important in the context of wider services. If the wider services that support families and enable young parents to become active members of society—including help in getting jobs and in having jobs that they can do—are not there, not as much will be achieved.
When I was a social worker, my colleagues and I used to think that spending some hours a week with small or older children would help but, compared with every other influence that they had in their lives, the impact of that time was quite small. We need to recognise that such provision is important. We should support the measure, but it is only part of the picture and the coalition Government need to set out their wider vision, so we can understand their overall commitment to children and families.
It is also a pleasure to follow the hon. Member for Sheffield, Heeley, given her description of an emerging cross-party consensus about supporting early years, which is something that my party has championed for a long time. It is a pleasure to be part of a coalition that is actually furthering such provision. The current provision for three and four-year-olds can be seen throughout our constituencies. If we go to the providers and children’s centres, and talk to families that have taken advantage of such measures, we can see the difference that it has made.
I should declare an interest as a parent of a two-year-old who is attending a pre-school group. When I went to that pre-school group a little time ago, it was called a playgroup—I have a vague memory of being there. In fact, the group got an outstanding rating last time it was inspected, which was well deserved.
My early years provision made a difference to me. Members of the Committee might want to question how efficacious it was, but it certainly gave me confidence going to school, given that I had experienced such social interaction. The free provision from which my older children benefited also made a big difference. It is also important that people from market towns like Bodmin, from all backgrounds and with all levels of income, can mix in such an environment, and get to know and support each other. I very much welcome the clause, so I congratulate the Minister on its introduction.
I take issue with what the hon. Member for Sheffield, Heeley said about a lack of vision or message from the Government. They have done a great deal in the few months that they have been in office through commissioning research, and we have already seen the fruits of that approach in the work of the hon. Member for Nottingham North (Mr Allen) and the right hon. Member for Birkenhead (Mr Field). As we have heard, we will soon have the wider review by Dame Clare Tickell. The Minister of State with responsibility for children, my hon. Friend the Member for Brent Central (Sarah Teather), will imminently be presenting a Green Paper on special educational needs. In a short time, we have therefore seen a great deal of work, and it will be the job of the Government over the coming months to bring those things together and present that vision.
In terms of concrete help, alongside the provision that the clause brings in, we have already heard—I will be brief, Mr Williams, as I do not want to test your patience—about increasing the number of health visitors. My right hon. Friend the Deputy Prime Minister has talked a great deal about the need for greater flexibility in paternity and maternity leave, and about working with employers to try to create a culture of flexibility. The coalition Government, in their few months in office, have already set out a vision that builds on the achievements of the previous Government, and it will hopefully also
There are often small pre-schools and nurseries in village communities in areas such as mine. When there are a few families with young children, just getting some of those children into school a year early might not only benefit those children and families, but keep that provision there for older children, because it gets the numbers up, and when dealing with such small numbers of children, that can make a difference.
Several hon. Members have talked about quality, and I welcome the fact that the Government set out last year their commitment to bringing forward new leaders in early years and to invest in that. That is great step forward because, as the hon. Member for North West Durham and others have said, it is not just about having the provision; it is about ensuring that it achieves what we want it to achieve: a good-quality experience that will benefit those young people and set them on the path to success in life.
We have a great deal yet to cover in the Bill, but this provision is one of its most important. I am delighted that it is front and centre as clause 1 of the Bill, and I welcome the fact that the Government are pressing forward with the agenda of providing early years support, education and child care to those who most need it.
The intention behind clause 1 is to reduce the gaps between the most advantaged and the least advantaged children. As I said earlier, those gaps begin to show at 22 months and widen throughout a child’s education. Many people are surprised that those gaps are the widest in those schools that are considered to be good or outstanding, and often in those local authorities that are considered to be the highest achieving. The hon. Member for Beverley and Holderness and I have discussed that before in relation to his constituency.
I want to discuss the importance of the family, because the provision will mean an extra 15 hours of education, child care or early years provision for the most disadvantaged two-year-olds in the country. However, that is only 15 hours in a child’s life, and what happens outside those 15 hours is as important, if not more important, for such disadvantaged children. My concern is that if this provision becomes, in practice, a replacement for Sure Start, rather than running alongside it, where will the support be for those needy families?
I want to say something about outcomes in support of the Chair of the Education Committee, the hon. Member for Beverley and Holderness. We recently heard evidence from early years and Sure Start providers during that Committee’s review of behaviour and discipline. I think that they were shocked that I would suggest that
This is about outcomes around individual provision. Lots of things will come out of the report that the Minister has talked about, but we must consider such points as whether children are able to hold a book properly and move the pages from left to right, and whether they know the difference between words and pictures, and know their primary colours. Those things can be measured, and there is every good reason why they should be. We should also hold local authorities to account for outcomes when they are very good for many children, but the gaps between the most advantaged and the least advantaged children are the widest.
Stella Creasy (Walthamstow) (Lab/Co-op): Many of my colleagues have made the points about the clause that I was going to make, so I do not intend to repeat them at length. However, I have some concerns about the processes involved in the Bill and the way in which they will play with some of the concerns that we have put forward today about the importance of early years. I share the view of Members on both sides of the House that early years should be prioritised. My concern is how these proposals will fit in with Dame Clare Tickell’s review and the long-awaited Green Paper on special educational needs.
My main concern is about the danger of making process changes, as this clause does, when further reforms might be needed as a result of the reviews. Let us not put the cart before the horse. Has the Minister considered how any proposals that might come from such reviews will be affected by the provisions in the clause? All of us want the outcomes of Dame Clare Tickell’s work to be taken seriously. If there is already a presumption about the early years provision that the Bill might bring forward, how will that fit in with Dame Clare Tickell’s work? For example, she might consider what can be done for early years provision in not just Sure Start centres but, as my colleagues have said, with local authorities or health care services. How will those be envisaged under the new system? How will the provisions in this clause impact on those conditions? We need to ensure that the clause does not inadvertently close down some of those considerations, and that is why we need the review, so we need to understand where the review fits into the process.
The same applies to special educational needs. There is an urgent need for an indication of what the Green Paper will bring and how it will be linked to the Bill. There is disagreement about how one might look at special educational needs within the early years setting and what that might mean for extending provision to two-year-olds and reaffirming the provision for three and four-year-olds. Given that we have not been able to see how the Green Paper fits in with these proposals, what work has the Minister done to ensure that however we define disadvantage and the provision of early years, special educational needs will not seen as a secondary consideration? Those of us who have worked in special educational needs know that the earlier we intervene for
We must ensure that all the Bill—not just the clause—supports such children. As we move on to other clauses, I know that there will be real concerns about the absence of such information. I hope that the Minister will take on board the concerns that Opposition Members raise. We support the work that has already been done and recognise the difference that Sure Start has made to many communities. However, we want to hear how the changes in the Bill will be taken forward in the light of Dame Clare Tickell’s review and the Green Paper on special educational needs.
Mr Gibb: We have had a very interesting debate and I shall address one or two of the issues that were raised. The hon. Member for Cardiff West talked about Nursery World. I am sure that that is an excellent publication and that everything in that issue was correct, but I am not sure whether the hon. Gentleman has interpreted it correctly. We are not allowing providers to charge top-up fees—that is the end of the story. I do not know the extent to which the story implied that that would be allowed, but it is not true. An early years provider will not be permitted to insist that parents buy extra hours as a condition of attending the free 15 hours’ provision.
The hon. Gentleman asked about the code of practice on the delivery of free early years provision for three and four-year-olds. There is a review of the code, the purpose of which is to shorten a lengthy document. A lot of work is being done in the Department to shorten, simplify and strengthen guidance, and the review of the code is part of that process. It is not being reviewed in order to introduce top-up fees.
Kevin Brennan: Of course, the revision of guidance and codes is very important. We would certainly welcome its being reviewed and made clearer and shorter. Can the Minister give the Committee a guarantee that following that process will not dilute the meaning or sense of the guidance?
Mr Gibb: I am sure that is the case. It is not a piece of work that I am doing, therefore I cannot give an ultimate guarantee. I can ask the Minister of State, Department for Education, my hon. Friend the Member for Brent Central (Sarah Teather) to write to the hon. Gentleman and assure him about that. Our approach to other documentation, unless we say explicitly that we are going to change the property, is generally to simplify and strengthen, rather than weaken existing guidance.
I welcome the comments of my hon. Friend the Member for Beverley and Holderness about the Government’s significant commitment to early years provision. He helped the Committee by adding up the figures over the spending review period to demonstrate graphically how large that commitment is, particularly given the current state of the public finances with which we are grappling. Despite all that, we can allocate significant sums of money to what all parties believe is an important area. He was also right to say that local
I will briefly reply to the point made by the Opposition Whip, the hon. Member for Preston. My understanding is that his local authority, at a full council meeting on 17 February, announced the council’s budget for the next three years. There was nothing specifically said about Sure Start children’s centres, but there was emphasis on reshaping services, without loss of front-line services. That should be where he is coming from when he raises those issues.
I also share the views of the hon. Member for Sheffield, Heeley, that the principal purpose of early years provision for two-year-olds is to help the children and close the development and attainment gap between those from disadvantaged backgrounds and their peers. There is another consequence that I saw at the children’s centre I attended on Friday. Several women—and they were all women in that instance—were using the three hours either to work part-time or to attend valuable classes, from which they gained hugely.
My hon. Friend the Member for North Cornwall was right to point out the real benefits of early years provision. He is a shining example of the alumni of such provision. He is also right to point out that this is probably the most important provision in the Bill. I pay tribute again to the Minister of State, Department for Education, my hon. Friend the hon. Member for Brent Central for the work she has put in to deliver it.
I will touch on comments by the hon. Member for Walthamstow about how this fits in with Clare Tickell and SEN. It is important to set out the funding provisions now, before those reports conclude. It is clear what they will be in 2011-12, 2012-13 and 2013-14. That is important. We can always wait for every little piece of the jigsaw to be put together, but that would be a mistake. From 6 April, local authorities can begin to raise capacity and quality, knowing that the funding will be available and will increase over time. That is the right approach. Nothing in the clause will prevent interesting or important conclusions from the Tickell review, or indeed policy proposals in the special educational needs Green Paper, from being implemented. There is nothing in this important clause that will close down avenues suggested by those two reviews, and I urge all members of the Committee to support it.
Kevin Brennan: 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:
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 childrenI do not think that we disagree on the philosophy, but my concern, in a nutshell, is that although it is an understandable function of the Opposition to create a dividing line between themselves and the Government on behaviour and discipline, we have the full knowledge that the subject easily generates headlines in certain parts of the press on getting tough on behaviour, and so what sounds like a good soundbite and a good idea in opposition does not always translate into good law—it can, in fact, translate into bad law. We must ensure that clause 2 creates usable powers that do not put teachers in an even more difficult position than they are already in, and that are reasonable in relation to the rights of pupils and students as well.
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.
Mr Sam Gyimah (East Surrey) (Con): 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.
Kevin Brennan: 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
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.
Richard Fuller: 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?
Kevin Brennan: 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
Stephen McPartland (Stevenage) (Con): 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?
Pat Glass: 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.
Stephen McPartland: 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?
Kevin Brennan: 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.
Kevin Brennan: 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.
Mr Gyimah: 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?
Kevin Brennan: 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
Meg Munn: 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?
Kevin Brennan: 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.
Mr Hayes: 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?
Kevin Brennan: 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.
Meg Munn: 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?
Kevin Brennan: 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
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.
Mr Stuart: 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.”
Kevin Brennan: 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.
Meg Munn: 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.
Kevin Brennan: 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.
Kevin Brennan: 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.
Dan Rogerson: 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?
Kevin Brennan: 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.
Julie Hilling (Bolton West) (Lab): 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.
Kevin Brennan: 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.
“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”
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
“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.
“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.”
“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.”
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.
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?
“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”.
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.”
“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.]
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.
“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.]
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.
Meg Munn: 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.
Mr Gibb: 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.
Meg Munn: 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.
Mark Durkan (Foyle) (SDLP): 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.
Meg Munn: 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:
“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.]
Mr Stuart: 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.
“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.]
Stephen McPartland: 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.
Meg Munn: 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.
Stephen McPartland: 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.
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.
Pat Glass: 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
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.
Stella Creasy: 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.
Pat Glass: 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.
Julie Hilling: 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
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.
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.
Julie Hilling: 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?
Dan Rogerson: 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.
Julie Hilling: 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.
Mark Durkan: 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
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.The incident need not happen inside the school. It could happen outside. I have experience of exactly that happening in Northern Ireland. A school ended up being heavily pursued by a parent because of something that happened to their child outside the school that they believed could and would have been averted if the school had intervened to stop bullying of a sectarian character inside the school. Therefore, the Committee needs to be careful that we approve only powers that are properly defined and duly exercisable safely for pupils and for the staff who exercise them.
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
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.
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
Mr Stuart: 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.
Pat Glass: 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.
Mr Stuart: 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.
“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.”
Kevin Brennan: 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.
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.
Kevin Brennan: 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.
Mr Gibb: 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
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.
Pat Glass: 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
Mr Gibb: 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.
Kevin Brennan: 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.
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
Meg Munn: 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.
Mr Gibb: 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.
Kevin Brennan: 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?
Mr Gibb: 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.
“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.”
“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.]
“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.]
“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”
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.
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