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The noble Earl said: My Lords, I spoke to the amendment earlier. I beg to move.
Moved, as an amendment to the Motion that this House do agree with the Commons in their Amendment No. 16, leave out “agree” and insert “disagree”.—(Earl Howe.)
On Question, amendment agreed to.
“General duty to promote resolution under schemeA scheme must include provision requiring the scheme authority and the members of the scheme, in carrying out their functions under the scheme, to have regard in particular to the desirability of redress being provided without recourse to civil proceedings.”
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 17.
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This new clause imposes a general duty to promote resolution under the scheme. A duty will now be imposed on scheme members and the scheme authority to have regard when carrying out their functions under the scheme to the desirability of settling the case.
The redress scheme to be established under the powers in the Bill aims to open up access to justice for the less articulate, less wealthy and those who traditionally would have been fed up and would have abandoned the process before a case is completed. Providers of NHS services will now be expected to take forward cases when they believe there may be a case of negligence.
An active approach of redress will be required under the scheme. There will be scheme members who are already taking an active approach to complaints and to clinical negligence cases. Some organisations will be prepared to be open and honest and will embrace the redress scheme, but there will be others who continue to be defensive and drag their heels. We need to do all we can to ensure that this will not happen.
The new clause signals that the redress scheme is not simply a parallel process to run alongside the courts. It is intended to be the primary means by which disputes arising out of NHS hospital services are, where reasonably practicable, to be resolved rather than leaving cases to be pursued through the courts. It would be wrong to require cases to be settled under the scheme willy-nilly, but the desirability of resolution is a factor that must be taken into account along with all other relevant considerations. For those reasons, I commend the Motion to the House.
Moved, That the House do agree with the Commons in their Amendment No. 17.—(Lord Warner.)
Earl Howe: My Lords, with the leave of the House, I wish to ask a question. Despite the Minister’s explanation, I am a little puzzled as to why the wording has been chosen. Despite the reasons adduced by the Minister, there is a problem of whether the new clause has genuine legal force. How could one ever verify one way or the other whether the scheme authority or scheme members were abiding by it, or failing to do so? In practical terms, the provision is unenforceable. If so, it is bad law and should not be in the Bill.
The whole point of the redress scheme is to provide an alternative to civil proceedings. The NHSLA is tasked at present with keeping disputes and complaints out of the courts. It does that successfully. No doubt it will continue to do so when the scheme is up and running. I cannot see why we need to state in the Bill that it must have regard to the desirability of redress being provided without recourse to civil proceedings. I am not sure what value that adds.
Perhaps the Minister could say a little more on those issues.
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Lord Warner: My Lords, as I understand it this new clause was tabled on Report in the Commons. Views were expressed outside the Commons—for example by Action against Medical Accidents—that some reinforcing mechanism was needed in the Bill. The new clause seeks to reinforce the message that scheme members and the scheme authority should actively seek resolution under the scheme.
I can understand where the noble Earl, Lord Howe, is coming from. But the clause is not meaningless; it makes it very clear that there may be a legal remedy if the duty to promote resolution is not properly exercised. We felt that it was important to put this matter beyond peradventure, given some of the points made. This provision was generally approved in the other place as a way to give a clear signal that the redress scheme is intended as the primary means by which disputes are resolved, so far as is reasonably practicable. That is the reason we went ahead with this particular provision.
On Question, Motion agreed to.
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 18.
Moved accordingly, and, on Question, Motion agreed to.
Lord Warner: My Lords, I beg to move that the House do agree with the Commons in their Amendment No. 19.
This is a privilege amendment. It removes Clause 19(6), which is commonly known as the “privilege amendment” and which states that nothing in the Bill will impose any new or increased charges on public funds. It is the privilege of another place to control charges on public funds. In order to acknowledge that financial privilege of another place, when a Lords Bill such as this, which includes charges on public funds, transfers to that other place, this House formally declares that the Bill will not result in any new or increased charges. The privilege amendment is then added to the Bill as it passes to another place. This amendment simply removes the privilege amendment.
Moved, That the House do agree with the Commons in their Amendment No. 19.—(Lord Warner.)
On Question, Motion agreed to.
Violent Crime Reduction Bill
6.33 pm
Clause 45 [Power to search school pupils for weapons]:
Baroness Anelay of St Johns moved Amendment No. 1:
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The noble Baroness said: My Lords, in moving Amendment No. 1, I shall speak also to Amendment No. 2. The amendments simply ask the Government to provide further clarification about issues we touched on in Committee and on Report. I welcome the noble Baroness, Lady Scotland of Asthal, to our proceedings. The noble Lord, Lord Bassam, has done sterling service throughout all previous stages, so I wait with bated breath to see why we have been targeted by a Minister of State as well.
I hope my amendments will give the Minister the opportunity to carry out his commitment given at col. 620 on Report. Clause 45 introduces a power to search school pupils for weapons. We have made it clear that we support that measure. Paragraph 312 of the Explanatory Notes states that,
- “in the case of maintained schools (which carry out a public function), there is an obligation to act compatibly with Convention rights and schools will be given guidance on how to ensure that searches are carried out compatibly with Convention rights”.
In Committee, I tabled an amendment to probe what kind of guidance would be given by the Government regarding how searches would be carried out and what training would be required. In particular, I asked what training would be given in schools to those carrying out the searches to ensure that the search was carried out in an appropriate manner.
In practice, the Minister did not respond to that question, perhaps simply because my amendment was at that stage grouped with a number of government amendments that had already been spoken to by him. In so doing he referred at col. 637 on 22 May to the fact that guidelines would be issued. The problem was that we did not obtain any further information about precisely what those guidelines might address. That debate was five months ago. Since then concern has been expressed particularly over the past two weeks about the wearing of veils in schools and elsewhere. I therefore felt that it was only right to give the Government the opportunity to put on record their view on the interpretation of the powers of search within that context.
On my reading of the Government's drafting, they have tried to cover the matter in the most sensible and sensitive way, but we need to be sure. Clause 45(5) permits a member of staff to require a pupil to remove outer clothing. Does that include the hijab? The subsection also states that the member of staff who carries out the search of the pupil while looking for weapons must be of same sex as the pupil and,
- “may carry out the search only in the presence of another member of the staff who is also of the same sex as the pupil”.
In my amendment I stipulate that the first member of staff must carry out the search only when the second member of the staff is the same sex as the pupil. I anticipate that the use of the word “may” in subsection (5)(c) is intended to have the same force as “must” in subsection (5)(b). I am puzzled why the terminology is different. It could lead those not used to parliamentary drafting to assume that a different objective is sought. I suspect that the objective is not different.
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Amendment No. 2 gives the Secretary of State the power to issue guidance regarding how the search powers in subsection (5) may be carried out. In particular it allows the Secretary of State to specify what should be considered as outer clothing. It is therefore more targeted than the amendment I tabled in Committee, which covered the whole clause.
How will guidance regarding the searches be formulated? Will there be national guidance from the Secretary of State after consultation with schools, their governing bodies, local authorities, teachers’ unions and professional associations, or will the guidance be provided by individual local authorities or schools? What progress have the Government made on this matter since the clause was published over a year ago in July 2005? I beg to move.
Lord Thomas of Gresford: My Lords, I support the thinking behind Amendment No 1. It is a matter of English. If the Minister says in terms that a search may be carried out only in the presence of another member of staff, as a matter of English that is fair enough, but if there is a possibility of a search being carried out without another member of staff being present, that would be terribly wrong, from not only the point of view of protecting the pupil but that of protecting the teacher from false allegations. It would be very easy for a person who is carrying a weapon and who is discovered in flagrante delicto so doing to blame the teacher concerned and to suggest that there had been some impropriety, some planting of evidence or something of that sort. It is essential to have two people to carry out searches. I hope to hear the Minister agree.
Lord Bassam of Brighton: My Lords, before I start I should return the compliment to the noble Baroness and say how much I have enjoyed her company on the Bill, and of course that of the noble Lord, Lord Thomas of Gresford. I greatly appreciate—I want this understood by all Members of the House—the constructive way we have had our debates on the many and varied issues that the Bill has raised. It has been a model of the way Bills should be considered and taken forward in the House. It has worked particularly well with some of the more practical, hard-nosed issues that we have had to consider.
These amendments, as set out by the noble Baroness, Lady Anelay, seek to alter the wording of the requirement that a member of staff must carry out a search only when another appropriate member of staff is present. They also seek to enable the Secretary of State for Education and Skills to issue guidance, and suggest that may in particular refer to who will conduct the search or be present during it, and the clothing that can be required to be removed.
Under subsection (5)(c) it is already a requirement of the search power that another member of staff of the same sex is present when a search is conducted. Therefore we would not seek any changes to the way that the requirement is expressed, as we believe the clause as currently drafted adequately meets the policy objective. It would not permit a search that is not carried out in the presence of another member of staff who is of the same sex as the pupil.
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Noble Lords will be aware that my right honourable friend the Secretary of State for Education and Skills plans to issue guidance for schools, and that my department will issue guidance for attendance centres. Preliminary discussions took place this month with the working group on school security—which includes representatives from teacher unions, parent organisations, police representatives and others—and liaison is continuing with faith groups. Obviously, all comments will be taken into account and we will then consult fully on the draft guidance. That will include advice on staff training, on employers’ duties to take reasonable steps to keep staff safe and on the importance of having insurance to cover any liability for injury in the course of employment.
Lord Thomas of Gresford: My Lords, I hope the Minister will forgive me, but would the advice or guidance include the requirement to keep an occurrence book, so that everything is properly recorded? These are important interferences with liberty, and it is essential that they should be properly marked.
Lord Bassam of Brighton: My Lords, the noble Lord makes an important point. Yes, it would certainly be my expectation that there would be a proper record of the events surrounding a search of that nature. It may also be helpful to say a little more on the planned scope of this guidance, which has already benefited extensively from suggestions from stakeholders—a term that, although I do not like it, we all understand. It will cover the context and practicalities—the sort of points that the noble Lord raised—and the consequences of searching. The context is likely to involve a school statement of policy, and options that staff should consider before embarking upon a search.
Practical aspects, to which I have already alluded, will include training for staff, the use of security firms, factors to take into account in suspicion, and being sensitive to issues of race, culture and religion arising from items of outer clothing—headgear, veils and so on. The consequences section will cover keeping records—the point raised by the noble Lord, Lord Thomas—informing parents and dealing with complaints. I hope it is clear from this that the guidance will be thorough. It is certainly our intention that it should be. If noble Lords feel that other things, which we have missed or not dealt with, should be put into the guidance, then we will be open to listening to those concerns as part of the consultation.
While it is unnecessary to detail the contents of the guidance in the Bill, since the Secretary of State for Education and Skills will be issuing guidance following what I hope noble Lords will now realise is a full consultation process, I can also assure the noble Baroness, Lady Anelay, that we will note all issues raised during these debates and try to ensure thatthey are taken into account properly during the consultation process.
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6.45 pm
The guidance will be national and issued by the DfES. What is outer clothing is, apparently, a matter of law, but non-statutory guidance can give indications, and it will.
Questions such as, “Can a search ever be carried out in front of a male when a female is involved?” have been asked. Our guidance will certainly recommend that only in exceptional circumstances should a school allow more staff to be present at a search than the two who must be present, and that any other person present should be of the same sex as the pupil. I have now covered the points raised by the noble Baroness, Lady Anelay, and the noble Lord, Lord Thomas, unless there are other questions.
Lord Hunt of Chesterton: My Lords, a question that concerns me is whether this may take up a huge amount of time for the school staff. The Minister referred to using security firms. If using those firms is to become a regular matter of course—as it obviously has become in American schools—presumably that would mean staff do not have to be present. Or, if the security firm’s staff is used for this security clearance, would there be one member of staff? How does the approach work in that case?
Lord Bassam of Brighton: My Lords, it is difficult to be precise in answering each and every circumstance, but there would clearly have to bemuch negotiation involved in the employment or deployment of security staff. In any event, if firms of security staff are used, there will have to be compliance with the general principles of the process to which I referred. Points of detail like that are best left in guidance, but I am happy to respond to individual issues raised outside the terms of this debate. I hope that my comments have been generally helpful and constructive, as they are meant to be. I am certainly attempting to answer the noble Baroness’s points in raising her useful amendment this evening.
Baroness Anelay of St Johns: My Lords, I am grateful to the Minister. I expected him to say that the “must” in subsection 5(b) was intended to mean the same as the “may ... only” in subsection 5(c), as that did look like an odd bit of drafting for those not perhaps used to the vicissitudes of this particular Bill.
I also agree with the Minister that it is useful to have the outline of what might be in guidance now; in this case, we certainly do not expect to see detailed guidance. Sometimes it is important to see what is in guidance before one progresses further, but as the Minister points out there are existing issues on guidance—both in statute, and non-statutory—upon which one hopes this consultation will build. However, it was right to raise today the sensitive issue of matters such as head-covering and what it comprises.
On the important issue of who is going to be present at a search—and what sex they should be—we had earlier discussions about how one defines a member of staff. I was pleased that the Government made amendments earlier, ensuring that they would
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I beg leave to withdraw the amendment.
Amendment, by leave, withdrawn.
Baroness Anelay of St Johns moved Amendment No. 3:
(1) It shall be an offence for any person intentionally to make an audio or visual recording of a criminal offence for the purpose of obtaining gratification for himself or another.
(2) It shall be an offence for any person to place on the internet an audio or visual recording made under subsection (1).
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