Apprenticeships, Skills, Children and Learning Bill

The extension to the existing power to search for weapons to cover alcohol, illegal drugs and stolen property will further ensure the safety and well-being of learners. It will also allow staff to deal with less serious incidents where the involvement of the police is, as the noble Lord, Lord Lucas, explains unnecessary and where incidents require an immediate response. In extending the scope of the power—the noble Lord, Lord De Mauley, talked about school rules—noble Lords have called for a power which ranges more broadly. I want to reassure noble Lords that the clause already covers most items that could fall into the category of harm that the Committee has discussed. It enables an authorised member of staff to search a pupil for any article made or adapted for use to cause injury, or intended by the person having it with him to be used to cause injury. Alcohol and illegal drugs are potentially harmful to learners and disruptive to school or college life, both of which will be specified for the first time under the new search powers. These, together with the power to search for stolen items, are things that schools have told us—and, yes, Alan Steer has reported—they would be most likely to need to search for. We have strong reservations about introducing a broader search power either through the definition of harm or the published school rules of the institution. It is vital to remember that searching without consent is a serious infringement of the right to privacy under Article 8 of the European Convention on Human Rights and is justifiable only under the specific terms set out in that article. We must ensure that the powers that enable those searches to take place also ensure that they are undertaken reasonably and proportionately. Earlier, we were talking about the UNCRC concerning the rights of the child. It is fair that we should continue to think about how we work with and support young people; it seems reasonable that here, too, we should act reasonably and proportionately. The more open-ended the power to search, the harder it is to justify the infringement of human rights. Our approach has been endorsed by the Joint Committee on Human Rights. That is an important balance that we have been able to strike. Furthermore, it is important that school staff are clear about what they can and cannot search for. Otherwise, we risk causing confusion and uncertainty in schools. That would produce the opposite effect from what the noble Lord, Lord De Mauley, wants—empowering and trusting teachers. The noble Lord, Lord De Mauley, asked about items such as pornography—violent or extremist literature was also referred to in the other place—and why they are not included. We have no evidence yet that a power to search for those items is needed. Of course, Ministers could consider legislating to extend powers in the regulations further if and when a need was identified. We know that alcohol, illegal drugs and stolen items are specifically highlighted, especially by the 2008 report to the Secretary of State by Alan Steer, which we have already discussed. We need to trust schools, and there needs to be a two-way trust between pupils and teachers and teachers and pupils—and between the Government and teachers. Their rules can be perfectly reasonable; I accept that absolutely, but it does not necessarily follow that a search without consent for any item contrary to those rules is reasonable. The point of limiting the scope of the clause to five specific items—knives, other offensive weapons, alcohol, illegal drugs, and stolen items—is that we want to promote clarity and proportionality. The example of chewing gum given by the noble Baroness, Lady Walmsley, was a good one. Another example might be earrings. In a lot of schools with which I come into contact, earrings are strictly prohibited for very good reasons. The noble Lord, Lord De Mauley, asked specifically about the burden of proof on teachers. I shall come to that when I address other amendments. I recognise the noble Lord’s argument that it is impossible for us to predict what schools may need to search for in future. That is why I shall speak to the government amendments—I will not go through the whole list. They will create a regulation-making power to add to the list of prohibited items, as I just suggested. That will maintain the safeguards and clarity of a specified list while allowing the list to be extended if a justifiable need arises. I believe that that meets the concerns of noble Lords opposite. That regulation-making power will be subject to the affirmative procedure, to ensure a proper level of parliamentary scrutiny. The noble Baroness, Lady Walmsley, talked about training. I have sympathy with her arguments, especially about Amendments 297ZA and 303A. However, it is unnecessary to provide a specific requirement for training in the Bill. Our current guidance on screening and searching of learners for weapons, which we intend to revise and strengthen, advises that no one should do a search without training. That is in the guidance. It is unnecessary to introduce a blanket training requirement for all staff. The training needs of individual staff are rightly the decision of the head teacher. Heads are best placed to decide about training, taking account of roles, previous experience, job responsibilities and the context of the school. These provisions require a head teacher to authorise a particular member of staff to undertake a search, and when doing so the head teacher would want to be satisfied that he or she is competent to do so. The noble Lord, Lord Lucas, and noble Lords on the Liberal Democrat Benches spoke on the confiscation and disposal amendments. Members of security staff fulfil significant roles. It would be great if schools did not need to have their support, but they make a great contribution to schools around the country. Schools can choose to have searches without consent conducted exclusively by members of security staff. Furthermore, school security staff are the only members of staff who the head teacher may require to conduct a search. Teachers may choose not to conduct a search if they feel uncomfortable in doing so. We touched on this point at Second Reading. Where other authorised members of staff conduct searches and seize items, it is right that they, as the persons actually conducting the search and seizing the items, have power to use reasonable force. We are firmly of the view that it would not make sense to delegate the power to use force in conducting a search. We also do not want to limit to security staff the power to seize items and to use force in doing so. We are keen to ensure that head teachers have the flexibility that they need. The noble Lord, Lord De Mauley, asked why the burden of proof is on the teacher rather than the pupil. Confiscation is interference in the human right to property. It is a serious matter. I know that the noble Lord is aware of that. The teacher needs to show that confiscation was justified, which is why Section 94 of the Education and Inspections Act 2006, entitled "Defence where confiscation lawful", is framed the way it is. It is not the same as putting a criminal burden of proof on teachers. I am advised to remind the Committee of that point. The noble Lord, Lord De Mauley, also asked about when items are expected to be handed to the police. Guns and knives must be handed to the police; there is discretion about whether alcohol and confiscated drugs are handed to them. Turning to Amendment 297B, which the noble Lord, Lord Lucas, referred to, I do not believe that it would be correct for a head teacher to be able to direct any members of staff who did not have school security as a main part of their duties to search against their will. There may be instances where a teacher does not feel comfortable exercising his power to search; for example, where he feels there would be a risk of physical harm. In such circumstances, it will be more appropriate for school security staff or, on extreme occasions, police to conduct the search. No noble Lord referred to CCTV, but I have a note here that states that on finally turning to Amendment 294, I should reassure noble Lords—if they had mentioned CCTV—that staff would be able to view CCTV evidence where they have suspicion of a prohibited item being on school property. I think that was a matter of concern to the noble Lord, Lord De Mauley. The noble Baroness, Lady Howe, made the point that defining harm is very difficult, and cited the example of moral harm. I very much agree with her contribution. Given my explanation, which was rather longer than I would have liked, I hope noble Lords will feel able not to press their amendments and will support the government amendments.