Education Bill

Memorandum submitted by Children’s Rights Alliance (E 19)

About CRAE

1. The Children’s Rights Alliance for England (CRAE) is an alliance of statutory and voluntary organisations and individuals [1] that seeks the full implementation of the United Nations Convention on the Rights of the Child in England. Our vision is of a society where the human rights of all children are recognised and realised.

2. CRAE protects the human rights of children by lobbying government and others who hold power, by bringing or supporting test cases and by using national, regional and international human rights mechanisms. We provide free legal information and advice, raise awareness of children’s human rights, and undertake research about children’s access to their rights. We mobilise others, including children and young people, to take action to promote and protect children’s human rights. Each year we publish a review of the state of children’s rights in England.

Introduction

3. This submission highlights significant opportunities and threats to the realisation of children’s rights in the provisions of the Education Bill, focusing on the following areas:

· Powers to search students without consent (Clause 2)

· Exclusion of students (Clause 4)

· Constitution of school governing bodies (Clause 37)

· Repeal of power to complain to Local Commissioner (Clause 44)

4. The Children’s Rights Alliance for England (CRAE) warmly welcomed the Government’s commitment to give due consideration to the provisions of the UN Convention on the Rights of the Child (CRC) when making new policy and legislation. [2] We urge Parliament to ensure that the Education Bill complies with the UK’s legal obligations under the CRC, including the requirement to ‘ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity [with the CRC]’ (Article 28(2)).

Powers to search students without consent (Clause 2)

5. CRAE is extremely concerned at the proposals to extend powers to search children without consent in schools. These searches constitute a significant intrusion into children’s privacy (protected under the CRC as well as the Human Rights Act) which must be shown to be necessary and proportionate in order to be lawful.

6. In 2009, school staff’s existing powers to search students (or their possessions) without consent for weapons [3] were extended to include alcohol, drugs, and stolen property. [4] The report of the Joint Committee on Human Rights showed that the Government had not provided sufficient evidence to demonstrate these measures to be necessary. [5] This extension of powers went ahead despite the absence of a published evaluation of how schools were using their existing search powers, as recommended by the Practitioners’ Group on School Behaviour and Discipline (chaired by Sir Alan Steer). [6] A thorough review of how schools are using their existing search powers must take place before further powers are considered. This review should show disaggregated data on the students who have been searched, in order to ensure that the powers are not being used in a discriminatory way.

7. The Bill extends the items for which school staff can search children without consent to include any article that staff reasonably suspect has been (or is likely to be) used to commit an offence or to cause personal injury or damage to property, as well any other item prohibited in a school’s rules. In addition, the Bill also enables staff to look through students’ phones, laptops and other devices and delete information "if the person thinks there is a good reason to do so". [7] These provisions represent a complete disregard for children’s privacy rights.

8. 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 carried out by a member of staff of the same sex as the pupil, and 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.

9. CRAE is extremely concerned at the breadth of the proposals. Legal advice given to Sir Alan Steer prior to the Apprenticeships, Skills, Children and Learning Bill questioned the legality of a general search power in schools. [8] This view was upheld by the then Government:

The reason why the human rights legislation is there in the first place is to ask us as parliamentarians and Ministers to pause and check that it is justifiable to interfere with a student’s rights, such as the rights of the privacy of the person. If we deem it justifiable, necessary and proportionate to do so, we will bring forward legislation, but I share [the Minister’s] concern about the general stop and search power. The question of whether the police should have the power to stop and search on our streets has been much debated in this House over many years. If you were to extend stop and search into our schools, you would do so very deliberately on the basis of real concerns that have been expressed. Those concerns have not been expressed, so we do not have the justification to interfere with those rights. [9]

10. CRAE recognises the crucial need to protect children from harm. However, we caution against incursions into children’s privacy unless they are based on sound evidence that they represent necessary and proportionate measures which will effectively guard against these dangers. These criteria must be met in order to ensure compliance with the Human Rights Act.

Exclusion of students (Clause 4)

11. CRAE is concerned that the Bill replaces independent appeal panels with weaker "review panels" which will be unable to reinstate children who have been unfairly excluded. Children who have been unjustly excluded must be able to return to their own school. [10]

12. At present, parents and young people over the age of 18 have the right to bring an appeal against a permanent exclusion. The right of appeal is a crucial tool for providing a system of redress and for safeguarding children’s right to receive education under Articles 28 and 29 of the CRC and Article 2, Protocol 1 of the European Convention on Human Rights. CRAE is a member of the Participation Works Partnership and supports its call for students to be able to appeal their own exclusions. [11]

13. CRAE is concerned that exclusion rates remain too high and disproportionately affect certain groups of children. In 2008, The UN Committee on the Rights of the Child recommended that the UK Government ‘use the disciplinary measure of permanent or temporary exclusion as a means of last resort only [and] reduce the number of exclusions …’. [12] Recent statistics from the Department for Education show that there were 6550 permanent exclusions from primary, secondary and "special" schools in 2008/09. [13] Whilst the number of permanent exclusions has reduced since 2007/08, the high figures indicate that exclusion is not being used as a genuine last resort. These statistics also highlight an over-representation of certain groups of children. For example, students with special educational needs (SEN) are over eight times more likely to be permanently excluded than other students and Black Caribbean students and students eligible for free school meals are three times more likely to be permanently excluded. [14] We urge Parliament to question the Government on how their proposals to reform exclusion processes will reduce these inequalities.