Apprenticeships, Skills, Children And Learning Bill - continued          House of Lords

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Clause 215: Power to amend meaning of “qualifying school”

687.     This clause enables the types of schools that are covered by the scheme (“qualifying schools”) to be added to, or amended by order at a later date. This order would be subject to the affirmative resolution procedure.

Clause 216: Amendments consequential on Chapter 2

688.     The Local Commissioner will be able to consider complaints relating to the National Curriculum where it affects an individual pupil. Previously, local education authorities had a role in the complaints process under section 409 of the Education Act 1996 and paragraphs 6(3) and (4) of Schedule 1 of the Education Act 1996. These sections have been repealed so that complainants are able to approach the Local Commissioner under the new scheme.

Chapter 3: Inspections

Clause 218: Interim statements

689.     This clause inserts three new sections into the Education Act 2005 in relation to the powers of the Chief Inspector and associated duties of schools.

690.     Section 10A enables the Chief Inspector to publish an interim statement (which it is expected will be commonly known as a “health check”) where the Chief Inspector considers that a school’s performance is such that it is appropriate to defer a routine inspection of the school for at least a year. The statement must set out the Chief Inspector’s opinion that inspection can be deferred and the reasons for that opinion. It is made on the basis of information available at the time and does not prevent the Chief Inspector from inspecting the school at any time if this is deemed necessary in light of changed circumstances. As its name indicates, the statement is only an interim measure. It cannot be used to defer an inspection beyond the end of the maximum period allowed between scheduled inspections.

691.     Section 14A applies in cases where the Chief Inspector makes an interim statement about a community, foundation or voluntary school, a community or foundation special school, or a maintained nursery school. Subsections (1) to (3) of 14A require the Chief Inspector to send a copy of the interim statement to the appropriate authority of the school (either the governing body or the local education authority) and to other specified people. Subsection (4) of section 14A requires the appropriate authority of the school to make the statement available to members of the public and to take steps to ensure a copy of the statement is received by parents within a prescribed period.

692.     Section 16A broadly mirrors the provisions in section 14A but applies to Academies; city technology colleges; city colleges for the technology of the arts; and special schools which are not community or foundation special schools but are for the time being approved by the Secretary of State under section 342 of the Education Act 1996. Under section 16A, the Chief Inspector must send a copy of the interim statement to the school’s proprietor and others.

Clause 219: Powers of persons providing administrative support in connection with inspections

693.     This clause amends Part 2 of Schedule 12 to the Education and Inspections Act 2006 to entitle administrators supplied by inspection service providers to enter an institution being inspected and assist inspectors by performing administrative tasks during the course of that inspection. The amendment prohibits inspection administrators from conducting inspections.

Chapter 4: School Support Staff Pay and Conditions: England

694.     This Chapter establishes the School Support Staff Negotiating Body (“SSSNB”). The SSSNB will be responsible for negotiating matters referred to it that are related to the remuneration, duties or working time of school support staff, with a view to reaching and submitting agreements to the Secretary of State for his consideration.

695.     The provisions enable the Secretary of State to make orders relating to those agreements submitted to him where he believes they properly address any matters referred to the SSSNB; are practicable for schools and local education authorities (as employers of school support staff) to implement; and have taken into account any factors that the Secretary of State has asked the SSSNB to have regard to during its considerations.

The SSSNB

Clause 220: The School Support Staff Negotiating Body

696.     This clause establishes the SSSNB and introduces Schedule 15 which makes further provision about the SSSNB.

Schedule 15: The School Support Staff Negotiating Body

697.     This Schedule makes provision for the constitutional arrangements, membership and proceedings of the SSSNB and certain administrative matters relating to the SSSNB.

698.     It provides that the SSSNB is to be constituted in accordance with arrangements made by the Secretary of State.

699.     The constitutional arrangements must:

  • provide for the members to include representatives of the prescribed organisations, the Secretary of State and an independent chair;

  • not provide for a member of the SSSNB to have voting rights, unless the member represents the interests of one of the prescribed organisations;

  • provide for the SSSNB to issue an annual report about the performance of its functions in each 12 month period.

700.     The constitutional arrangements may:

  • provide for the SSSNB to include other members;

  • make arrangements for the provision of administrative support for the SSSNB;

  • require the annual report to be sent to particular persons or published in a particular manner;

  • provide for the payment of fees to the independent chair and the payment of expenses incurred by the SSSNB.

Clause 221: Matters within SSSNB’s remit

701.     This clause describes the matters that fall within the remit of the SSSNB, these matters being the pay and conditions of employment relating to the duties and working time of school support staff in England, and allows the Secretary of State to include or exclude matters by order.

Clause 222: Referral of matter to SSSNB for consideration

702.     This clause enables the Secretary of State to refer a matter to the SSSNB for consideration where that matter falls within the remit of the SSSNB; specify factors which the SSSNB must have regard to in considering the matter; and specify a date by which the SSSNB must submit any agreement it reaches about the matter or notify him that it has been unable to reach agreement.

703.     It requires the SSSNB to consider the matter referred, taking into account any factors specified by the Secretary of State, and to submit any agreement reached by it to the Secretary of State, or to notify him that it has been unable to reach agreement, by any date specified by the Secretary of State.

Clause 223: Consideration of other matters by SSSNB

This clause allows the SSSNB to consider and reach agreement on a matter within the remit of the Body where the matter has not been referred to it by the Secretary of State, and to submit that agreement to the Secretary of State.

Clause 224: Agreement submitted by SSSNB under section 222 or 223

704.     This clause applies where the SSSNB submits an agreement to the Secretary of State (except where the agreement is submitted as a result of the SSSNB’s reconsideration of a matter).

705.     Upon receipt of the agreement, the Secretary of State may either ratify the agreement or refer the agreement back to the SSSNB for further consideration.

Clause 225: Reconsideration of agreement by SSSNB

706.     Where the Secretary of State refers an agreement back to the SSSNB for reconsideration, this clause provides that he may specify factors that the SSSNB must take into account, and a date by which the SSSNB must submit its revised agreement or, if it has not agreed any revisions, resubmit the existing agreement.

707.     Following reconsideration of the agreement, the SSSNB must submit any revised agreement back to the Secretary of State or, if it has not agreed any revisions, resubmit the existing agreement.

708.     This clause also enables the Secretary of State to withdraw the reference of the agreement, withdraw or vary any factor which must be taken into account, specify additional factors to be taken into account or postpone any deadline set to a later date, at any time before the SSSNB submits the revised agreement or resubmits the existing agreement.

Clause 226: SSSNB's submission of agreement following reconsideration: powers of Secretary of State

709.     This clause applies where the SSSNB has resubmitted an agreement following reconsideration. The Secretary of State may:

  • make an order ratifying the agreement;

  • refer the agreement back to the SSSNB for further consideration;

  • make an order requiring particular persons to have regard to the agreement;

  • make an order which makes provision otherwise than in terms of the agreement.

710.     The Secretary of State may refer an agreement back to the SSSNB for further reconsideration only if it appears to the Secretary of State that:

  • the agreement does not properly address the matter that was referred to the SSSNB; or

  • it is not practicable to implement the agreement; or

  • the SSSNB has failed to take into account factors specified by the Secretary of State on referral of the matter to the SSSNB for reconsideration.

711.     The Secretary of State may make an order otherwise than in terms of the agreement only if it appears to him that one or more of the above conditions applies, and that there is an urgent need to make such an order.

Clause 227: Powers of Secretary of State in absence of SSSNB agreement

712.     The effect of subsections (1) and (2) of this clause is that where the SSSNB notifies the Secretary of State that it has been unable to reach agreement or fails to submit an agreement to the Secretary of State by any deadline imposed, the Secretary of State may extend any such deadline or, if he considers there is an urgent need to do so, may make provision by order in relation to the matter referred to the SSSNB.

713.     The effect of subsections (3) and (4) is that where, following reconsideration, the SSSNB fails by any deadlines imposed either to submit a revised agreement, or, where it has not agreed any revisions, to resubmit the existing agreement to the Secretary of State, the Secretary of State may extend any such deadline or, if he considers there is an urgent need to do so, by order make provision in relation to a matter to which the agreement relates.

714.     Subsection (5) requires the Secretary of State to consult the SSSNB before making an order under this clause relating to a matter referred to the SSSNB, or to a matter to which an agreement referred to the SSSNB relates.

Clause 228: Effect of order ratifying SSSNB agreement

715.     Where the Secretary of State by order ratifies an agreement this clause provides that:

  • if the agreement relates to a person’s remuneration, that remuneration is to be determined and paid in accordance with it;

  • if the agreement relates to any other condition of a person’s employment that condition becomes a term of the person’s contract of employment.

716.     It also provides that any term of the person’s contract of employment which conflicts with the agreement has no effect.

Clause 229: Effect of order making provision otherwise than in terms of SSSNB agreement

717.     Where the Secretary of State makes an order otherwise than in terms of a SSSNB agreement, or in the absence of a SSSNB agreement, this clause provides that the order must either:

  • require particular persons to have regard to the order when exercising particular functions; or

  • provide that the order has effect for the purpose of determining the conditions of employment of the persons to whom it applies.

Clause 230: Orders: supplementary

718.     This clause provides that orders made under this Chapter may apply retrospectively but may not reduce a person’s pay or alter their conditions of employment to their detriment retrospectively.

719.     It also provides that where an order makes provision by reference to an agreement or other document it must make provision about the publication of that agreement or document.

Clause 231: Guidance

720.     This clause provides that, with the Secretary of State’s approval, the SSSNB may issue guidance relating to-

  • an agreement that has been ratified by an order under this Chapter

  • an agreement to which persons are by an order under this Chapter required to have regard.

721.     It also allows the Secretary of State to issue guidance relating to an order which makes provision in the absence of, or otherwise than in terms of the agreement.

722.     Subsection (3) provides that local education authorities and governing bodies of schools maintained by local education authorities must have regard to guidance issued under this clause.

Clause 232: Non-statutory School Support Staff Negotiating Body

723.     This clause provides for the establishment of the non-statutory School Support Staff Negotiating Body to be treated as the establishment of the SSSNB.

724.     It also provides for:

  • the non-statutory body’s constitutional arrangements; and

  • any matters referred to the non-statutory body by the Secretary of State;

  • to be treated as if they were:

  • arrangements made in respect of; and

  • matters referred to;

  • the SSSNB under this Chapter.

Clause 233: “School support staff”

725.     This clause defines “school support staff” for the purposes of this Chapter. The definition excludes school teachers and persons of descriptions described in regulations. The Government envisages that the power to make regulations will be exercised so as to exclude from the definition of “school support staff” persons whose terms and conditions of employment are determined in accordance with agreements of other bodies which are as follows: the Soulbury Committee, the Joint Negotiating Committee for Youth and Community Workers and the Joint Negotiating Committee for Local Authority and Associated Employees.

Clause 234: General interpretation

726.     This clause defines other terms used in the Chapter.

PART 11: LEARNERS

Power to search for prohibited items

Clause 235: Power of members of staff to search pupils for prohibited items: England

727.     A head teacher or an authorised member of the school staff has a statutory power, under section 550AA of the Education Act 1996 to search a pupil or his possessions without consent if there are reasonable grounds for suspecting that the pupil is in possession of a weapon. This clause extends this power to cover illegal drugs, alcohol and stolen property.

728.     It creates new sections 550ZA, 550ZB, 550ZC and 550ZD of the Education Act 1996 for England. These new sections re-enact the existing power in section 550AA of the Education Act and extend the powers to enable searches to be made for controlled drugs, stolen items or alcohol where the member of staff has reasonable ground to suspect possession of a prohibited item. They give authorised members of staff a power to search where a pupil refuses a reasonable request to, for example, turn out their pockets, but do not impose any duty upon members of staff to carry out a search.

729.     The new powers will be supported by guidance. The guidance will explain how the powers should be exercised by providing advice to schools on what they must and must not do if and when choosing to search a pupil or pupil’s possessions for a prohibited item; as well as good practice that can help those exercising search powers to ensure they comply with the law and make an effective search.

Section 550ZA: Power of members of staff to search for prohibited items: England

730.     Subsection (1) specifies that the power may be used only where a member of staff has reasonable grounds to suspect that a pupil has with him or her, or in his or her possession, a prohibited item. It also provides that a person may carry out a search only if he or she is the head teacher of the school, or he or she has been authorised by the head teacher to carry out the search.

731.     Subsection (3) sets out which items are prohibited and hence may be searched for. There is already a power in 550AA to search for items (a) and (b). (c) to (e) are the additional ones.

732.     Subsections (4) and (5) define what is meant by “stolen”, “member of staff” and “possessions”.

733.     Subsection (6) provides that the powers in 550ZA, 550ZB and 550ZC do not restrict any common law, or other statutory, powers members of staff have to search pupils and their possessions.

Section 550ZB: Power of search under section 550ZA: supplementary

734.     Section 550ZB sets out who may carry out the searches and how those searches must be conducted.

735.     Subsections (1), (2) and (3) provide that only head teachers and authorised members of staff may conduct searches, and that a member of staff may have (a) a general authorisation to search, for example a member of staff may be authorised to search for any prohibited item at any time; (b) be authorised to conduct a particular search, for example given authorisation to search a particular individual in a particular circumstance; or (c) be authorised to conduct particular types of searches, for example given authorisation to conduct searches for some prohibited items (but not others), or where a particular set of circumstances arise. Subsection (3) provides that a headteacher may not require anybody other than security staff to conduct a search. This means teachers can never be placed under any obligation to search a pupil.

736.     Subsection (4) stipulates that a search may be carried only out on school premises or where the member of staff has lawful control or charge of the pupil. These powers apply only in England; they therefore do not apply on school trips to other countries.

737.     Subsection (5) provides that reasonable force may be used in executing a search.

738.     Subsection (6) states that a search of a pupil may only be made by a person of the same gender as the pupil and in the presence of another member of staff. It also provides that the person carrying out the search may not require the pupil to remove any clothing other than outer clothing (as defined in subsection (8)).

739.     Subsection (7) states that a pupil’s possessions may be searched only in the presence of the pupil and another member of staff.

740.     Subsection (8) defines “member of the security staff” and “outer clothing”.

Section 550ZC: Power to seize items found during search under section 550ZA

741.     Section 550ZC sets out the powers members of staff will have to seize and dispose of any prohibited items.

742.     Subsections (1) and (2) provide for the person carrying out the search to seize any prohibited items and any other items suspected to be evidence of an offence found during the search, and to use reasonable force when exercising this power. This would allow the person conducting the search to not only seize prohibited items such as weapons, drugs, alcohol and stolen items but could for example allow them to seize any non-prohibited items they find whilst conducting the search which might be evidence in relation to any other unconnected offence.

743.     Subsections (3) to (8) state what may or must be done with items that are seized.

  • Where a person conducting a search finds alcohol, they may retain or dispose of it.

  • Where they find controlled drugs, these must be delivered to the police as soon as possible, unless there is a good reason not to do so — in which case the drugs must be disposed of.

  • Where they find stolen articles, these must be delivered to the police unless there is a good reason not to do so — in which case they must be returned to the owner. These articles may be retained or disposed of where returning them to their owner is not practicable.

744.     In determining what is a “good reason” for not delivering items to the police, regard must be had to guidance issued by the Secretary of State.

745.     Any weapons or items which are evidence of an offence must be passed to the police as soon as possible. Except that, where a person searching for a specific prohibited item finds evidence of an offence in the form of another prohibited item, the item found will be dealt with in accordance with any specific provision made for that item, So, for example, in a case where a person searching for alcohol finds controlled drugs, the drugs must be taken delivered to the police as soon as possible, but there will also be a discretion to dispose of them.

746.     Subsection (9) provides that the powers and duties relating to what must be done with any alcohol, controlled drugs, stolen articles and weapons seized apply to items reasonably suspected to be alcohol, controlled drugs, stolen articles and weapons.

Section 550ZD: Section 550ZC: supplementary

747.     Subsection (1) provides that the Police Property Act 1987 applies in relation to items seized. The Act enables an application to be made to a magistrates’ court for an order that property in possession of the police be returned to its owner.

748.     Subsections (2) and (3) provide that, where a person conducting a search, lawfully seizes, retains or disposes of an item seized under section 550ZC, they shall not be liable for the seizure, loss or disposal, or any damage arising. These provisions replicate provisions in section 94(2) of the Education and Inspections Act 2006. Subsection (2) of clause 235 therefore disapplies the provisions in that section in relation to items seized under section 550ZC.

749.     Subsection (4) provides that subsections (2) and (3) do not prevent a person who has seized items under section 550ZC from relying on any other available defence in proceedings.

Clause 236: Power of members of staff to search pupils for weapons: Wales

750.     This clause makes amendments consequential on clause 235, to retain the status quo in Wales. Members of staff in schools in Wales will continue to have powers to search for weapons only as set out in Section 550AA of the 1996 Act on weapons searching (which was inserted by section 45 of the Violent Crime Reduction Act 2006).

Clause 237: Power of members of staff to search students for prohibited items: England

751.     A principal or an authorised member of the college staff has a statutory power, under section 85B of the Further and Higher Education Act 1992 (“the 1992 Act”), to search a student or his possessions without consent if there are reasonable grounds for suspecting that the student is in possession of a weapon. This clause extends this power to cover illegal drugs, alcohol and stolen property.

752.     This clause inserts new sections 85AA, 85AB and 85AC for England, into the 1992 Act. These new sections re-enact the existing powers to search a student and his or her possessions without the student’s consent for weapons, and extend the powers to enable searches to be made for, controlled drugs, stolen items or alcohol (for students under 18) where the member of staff has reasonable ground to suspect possession of a prohibited item. The section gives members of staff a power to search but does not impose any duty on them to carry out any searches.

753.     The new powers will be supported by guidance. The guidance will explain how the powers should be exercised by providing advice to institutions on what they must and must not do if and when choosing to search a student or student’s possessions for a prohibited item; as well as good practice that can help those exercising search powers to ensure they comply with the law and make an effective search.

 
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Prepared: 7 May 2009