Education Bill

Public Bill Committee, 10 March 2011.

Charles Walker (Conservative, Broxbourne)

Before we begin, I should like to inform the Committee that my fellow Chair was of the opinion that the principle of clause 2 and matters arising will have been adequately discussed during the course of the debate on the amendments, once we have finished with all the groups. I therefore intend to put the question on clause stand part forthwith, once we have dealt with all the amendments to the clause.

Clause 2

Charles Walker (Conservative, Broxbourne)

I remind the Committee that with this we are discussing the following: amendment 12, in clause 2, page 4, line 23, at end insert—

Amendment 16, in clause 2, page 4, line 41, leave out from beginning to end of line 3 on page 5.

Amendment 15, in clause 2, page 5, line 3, at end insert—

Amendment 11, in clause 2, page 6, line 17, at end insert—

Amendment 17, in clause 2, page 6, line 17, at end insert—

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Welcome to your first chairing of the clause-by-clause scrutiny, Mr Walker. It is good to serve under your chairmanship, and it is good to be back.

On Tuesday, when we left off, I was talking about amendment 12, which seeks to introduce a requirement for training in using search powers, especially to cover the maintenance of a pupil’s dignity and privacy, as well as the additional considerations of searching a child with special educational needs.

As I said, I understand the concerns behind the amendment and the importance of maintaining dignity and privacy, as well as the additional factors that teachers need to take into account when searching a child with special educational needs. However, under existing provisions which are not being amended by the Bill, head teachers are required to authorise members of staff to undertake a search. The head teacher must, therefore, be satisfied that the member of staff is competent to carry out a search, taking account of any training received.

A wide variety of training organisations offer services to schools on a commercial basis, providing head teachers with the flexibility that they need to ensure that their staff have the most beneficial training. The arguments were well rehearsed when the power to search for weapons was first introduced under the Violent Crime Reduction Act 2006, and again when the power was extended to include alcohol, illegal drugs and stolen items under the Apprenticeships, Skills, Children and Learning Act 2009. For the reasons set out above, it was not deemed necessary for the legislation to impose on schools a requirement for training. I do not believe that it is necessary now, in relation to the existing search provisions or to the extensions to the search provisions being made in the Bill.

The hon. Member for Bolton West said that the existing provisions require a searcher to be a senior member of staff with training. That is not in the current provisions, for which the hon. Lady’s party was responsible, other than the requirement for the head teacher to have authorised the member of staff to carry out searches—a proviso that we are maintaining.

Of course, we firmly agree that behaviour management is important, and that all teachers should be trained to manage pupils’ behaviour. Giving teachers the authority and training to tackle poor behaviour effectively is vital. Currently, only two thirds of newly qualified primary teachers feel that they are well or very well trained to establish and maintain a good standard of behaviour in a classroom. That is why the White Paper “The Importance of Teaching” sets out our commitment to reform initial teacher training to focus on key teaching skills, such as managing behaviour.

Amendment 16 seeks to remove a provision that would, in certain limited circumstances, enable searches of a pupil’s possessions to be carried out without a witness. The limited circumstances are those in which the person carrying out the search reasonably believes that there is a risk of serious harm being caused to a person and, in the time available, it is not practicable for another member of staff to be present.

It is clear to me from the discussions during the evidence sessions and in Committee that some hon. Members and practitioners are concerned about such searches. I assure the Committee that the Government take those concerns and the need to safeguard pupils extremely seriously. We also take very seriously the need to ensure that teachers have the legal backing they need to act immediately in exceptional circumstances to prevent serious harm to themselves or pupils. By permitting searches of possessions without a witness in very limited circumstances, I believe we strike the right balance in the interests of safety.

Meg Munn (Labour, Sheffield, Heeley)

Some time has elapsed since Tuesday; has the Minister come up with a scenario in which this might be needed?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The hon. Lady will have to contain her excitement and anticipation: that moment is about to arrive. I believe that, in practice, it would be on very rare occasions that teachers would search a pupil’s possessions without a witness present, but in the interests of safety it is right that the law provides this flexibility.

On Tuesday the hon. Lady said that she could not imagine a situation where this provision might be necessary. A practical example of where it would be helpful in a secondary school is that of a lone science teacher who suspects that a pupil, known to have self-harmed in the past, has taken a bottle containing a chemical substance which he intends to ingest. The teacher feels unable to leave the room to summon another member of staff, for fear that the pupil will ingest the substance in her absence. In this instance, the law would allow the teacher to undertake an immediate search of the student, because the teacher reasonably believes that by taking the substance the pupil could cause himself serious harm.

I also suggest that any actual or suspected possession of a weapon is an emergency situation which teachers must be able to respond to immediately, rather than being required to wait for reinforcements.

It is not possible for us in the Committee room to predict every circumstance in which it might be necessary for a member of school staff to search a pupil without a witness, but it is right that if and when such circumstances arise the law enables them to take immediate action in the interests of all concerned.

Kevin Brennan (Labour, Cardiff West)

The Minister just cited an example that actually could be dealt with by existing powers. Will the Minister cite examples of the lobbying that he had on the particular necessity—as he puts it—to introduce this new power under these circumstances, and tell us from whom he received that lobbying?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Not all measures are driven by lobbying, but I will come back to the hon. Member with some details of which people and organisations wish to have this power, either later in the sitting or in writing. In a moment I will cite some organisations that support this provision. I will find out whether they lobbied for it in advance, but as Ministers we have to take decisions based on our view of whether the measures are necessary, in addition to what other people are saying.

Kevin Brennan (Labour, Cardiff West)

May I say welcome to our deliberations, Mr Walker? Am I reading the Minister correctly? Is this something that came out of his own head?

On a point of order, Mr Walker. Would it be possible to pull the blinds down? It is rather difficult to see the Minister’s face across the room with that backlight.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

It was a deliberate decision of mine to put the blinds up. The hon. Gentleman was a Minister in the previous Administration, so he knows how policy development works. These are not issues that arise from one person’s mind, but rather from a process of deliberation and concerns raised in opposition. However, I will also cite to him the briefing from the Association of School and College Leaders submitted to the Committee. At paragraph 5 it says:

“ASCL strongly believes that this extension of search powers is necessary and proportionate. The current position on searches has led to confusion and in some cases this has seriously undermined discipline.”

It goes on:

“We also welcome changes allowing searches to be carried out by a member of the opposite gender or without witness in specified urgent situations.”

One reason that the witnesses in one of the sessions were unable to clearly identify circumstances was because they were from secondary schools. Although the example that I have given is from a secondary school, the most likely occasion when that would occur would be in a primary school. It may be necessary for an opposite-sex search to take place there in the interests of child safety, particularly bearing in mind the fact that a quarter of primary schools have no male teachers.

Meg Munn (Labour, Sheffield, Heeley)

I raise these issues out of a genuine concern about the signal that is being sent. We have discussed signals a lot. I do not want to go into too much detail in an intervention, but the issue of self-harm could have been dealt with with the assistance of other pupils, and I addressed the issue of weapons in a contribution the other day. The signal that this sends to some teachers—unfortunately there are those that do not have good intentions—is that it is okay for a male teacher to perform a bodily search on a female pupil on their own. That is an enormously worrying signal. I have discussed it with many people who work in the care and education sector, and they share my concern.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

That would be the wrong signal to receive from the Bill, because the clause clearly states that

“the person carrying out the search”

must reasonably believe

“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”.

That test must be passed first. A male teacher cannot search a member of the opposite sex on a whim. A second test must also be satisfied, which is that

“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as the”

pupil

“or in the presence of another member of staff”.

Both those tests must be satisfied, and the searcher must be authorised by the head teacher in the first place. There are plenty of safety measures to ensure that the hon. Lady’s example will not apply in practice.

Pat Glass (Labour, North West Durham)

I would like to give the Minister the benefit of my experience, and he will be sick to death of that by Easter. I have been in many classrooms over many years, and in the past five years I can honestly say that I have never been in a classroom, in a secondary or primary school, where the teacher is alone and there are no other adults. The measure is unnecessary.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I will never be sick of the hon. Lady’s advice. Her years of experience are valuable, and her presence here is a loss to the teaching profession. I visited many schools in my years in opposition and since becoming a Minister, and I have been in many classrooms where the only adult, until I entered, was the teacher. In secondary schools, it is far more common for there to be one teacher in the classroom. The example I gave is not, therefore, an impossible situation. The fact that she would never have needed such powers in her professional experience is not a reason for not putting this safety measure into the legislation, particularly as it has support.

Stella Creasy (Labour, Walthamstow)

Will the Minister set out a little more clearly the precise time frame in which he expects the powers to be operated? He mentioned a particular time slot when he would imagine that a teacher would need to use the powers, and he also mentioned that the teacher would have to be sanctioned by the head teacher. Will he explain the kind of times that he is discussing? Five minutes? Ten minutes? Fifteen minutes? Is there a window in which these emergency powers might be used by a teacher without getting another adult or witness to what was going on?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The teacher must have been previously authorised by the head teacher to carry out a search, and then the two conditions would apply, one of which is that there was not reasonable time to get a witness or another person to search.

Stella Creasy (Labour, Walthamstow)

Could the Minister set out what he means by reasonable time? What sort of time scale is he talking about?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I will not start to lay down words in Hansard that will detract from what is clear in the legislation, because it states that the condition is satisfied if

“in the time available it is not reasonably practicable for the search to be carried out by a person of the same sex as the”

pupil. That, to me, is very clear and I do not think that any defining of those words by me would make the provision clearer. If anything, it would make it less clear. We will leave the wording in the Bill to speak for itself.

Kevin Brennan (Labour, Cardiff West)

What the Minister just said has revealed to the Committee how undercooked his thinking is on the matter. He cited an example a moment ago of a science teacher who might have to use such powers under certain circumstances. A moment later, he said that only teachers previously authorised by the head teacher would be able to use the search powers. Clearly, that cannot work because, if it were an emergency, all teachers would have to be able to use the powers, not just those teachers previously authorised by the head teacher. I have a feeling that some in-flight refuelling might have arrived, so I shall give the Minister a chance to answer that point.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The teacher has to be authorised, as a matter of school policy. The head teacher will take into account contingent matters that might happen in the future. The issue of teachers being authorised by the head teacher was introduced by the previous Administration. We support it. Its purpose was to ensure that newly qualified teachers and teachers without experience were not given such authority. The legislation makes it clear that, for example, the head teacher cannot authorise a senior pupil to carry out searches. They are important safeguards in the general search powers.

Kevin Brennan (Labour, Cardiff West)

Unless I am wrong, the powers for teachers to deal with disruption and ill discipline related to an immediate issue in the classroom are available generally to all teachers. I see an official shaking his head, but under law teachers are protected if they have to act in an emergency situation that they come across—for example, if they have to restrain pupils when there is reasonable cause to do so. The Minister is citing an emergency situation that could occur in a classroom at any time for which he said the powers would be essential, but he says that he does not anticipate that all teachers would be given the powers to carry out the search under those circumstances. That is a serious flaw in the proposal.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The hon. Gentleman was making the point with respect to restraint. He is right about that, but it is not the ideal way of dealing with the example that I gave. Restraining the pupil and holding her is one way of tackling the problem, but it is better to remove the chemical substance from the pupil. To restrain her for five, 10 or 20 minutes until another adult can come is not the ideal method.

Tessa Munt (Liberal Democrat, Wells)

Any such incident will be an emergency situation. We have established that. Obviously, all schools will record in the incident book if such a situation arises. It must surely be the case that, when a search takes place of a pupil by a member of staff, it would be recorded in the incident book and that, in itself, would be a check. It would be evidence for Ofsted to look at, if there was a particular discipline problem within the school. The incident book is the place where it should be recorded and, in some way, that is protection for anything suggested by the hon. Member for Cardiff West such as the vagaries of people taking such action in inappropriate circumstances.

Charles Walker (Conservative, Broxbourne)

Order. Interventions are getting very long. Can we shorten them a little?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I am grateful to my hon. Friend for her intervention. She made the point about the protection of teachers extremely well.

Richard Fuller (Conservative, Bedford)

Does the Minister agree that although the Opposition’s probing examples are useful they miss the core point, which is that the Bill provides the discretion so that teachers can exercise their judgment in their classroom? It is tight, but broad enough to allow that discretion by teachers. That the previous Government were unwilling to allow professionals that discretion was one of the reasons why their model of government came to an abrupt end.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Yes, my hon. Friend is absolutely right. I am trying to understand the argument of the shadow Minister. Is he arguing that anyone should be able to search? We think that the safeguards that exist at present are good; head teachers need to have a clear policy of who should be able to search. Does he believe that any teacher in the school should be allowed to search?

Kevin Brennan (Labour, Cardiff West)

That is a good rhetorical point, but it is not what I am arguing. I am asking the Minister to clarify how the powers will work in practice. In the practical example that he gave of a pupil who might be about to ingest a poisonous substance, at the point of danger no search would be required. If the teacher thought that the pupil had such a substance about their person, they could ask the pupil to hand it over. If they refused to do so, the teacher could take appropriate action to bring another member of staff along to conduct a search. The moment of danger is at the point where a pupil tries to ingest such a substance, in which case the teacher would require not search powers but restraint powers.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

At that point it might be too late, if it were a toxic substance. The substance might be in the child’s bag and it would seem reasonable for the teacher simply to search the bag, but if they did so they would be breaking the law. We want to clarify the position so that teachers feel safe in their ability to ensure that there is good behaviour, order and safety in our classrooms. We are simply trying to clarify the law so that teachers know precisely where they are in maintaining order in our classrooms.

Pat Glass (Labour, North West Durham)

There has been a lot of discussion about teachers and professionals, but the legislation talks about

“powers of members of staff”.

Members of staff might be the caretaker, lunch time supervisors or any visitor who is employed at the school at the time. Is the Minister seriously suggesting that the caretaker should carry out a search?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

No; it has to be authorised staff, and such issues were raised when these powers were first introduced. It has to be a member of staff who is authorised by the head teacher. This amends other legislation that contains the necessary safeguards, which also include the fact that the head teacher cannot authorise a senior pupil—or any pupil—to carry out a search. Such safeguards about precisely who can carry out a search already exist in legislation, and we intend to maintain them. The other point to make is that the search that can be carried out cannot be an intimate one. I will come to that in a minute, but there are clear rules about what parts of the body can be searched and what clothing can and cannot be searched.

I now turn to some of the points that were raised on Tuesday. The hon. Member for Cardiff West mentioned the particular problems that might be faced by pupils with autism, especially those who have difficulty understanding instructions or coping with social interaction. That question was raised by Ambitious about Autism—formerly TreeHouse—and Autism Alliance UK in their briefing on the Bill. This is really about training teachers to deal with pupils who have severe behavioural or communication difficulties, rather than about searching. Staff need to understand what factors influence such a child’s behaviour, recognise the warning signs and be able to manage difficult situations. Teachers have had the power to search for some years and I am not aware that there has been a particular problem with disabled students. I would expect to have seen some evidence by now if a specific problem existed in this area.

Many hon. Members, including the hon. Member for North West Durham, have spoken of scenarios where it would be inadvisable for teachers to carry out a search. I accept that these are permissive powers, which are for use when it is regarded as appropriate and vital to conduct a search. The hon. Lady has asked what this says about the Government’s view of children. It says that we want to protect children, and to ensure that school is a safe and happy place where children are free to study and to learn.

Turning to amendment 15, I do not believe that it is necessary or desirable to define in guidance the terms—“search,” “force,” “risk,” “serious harm,” “reasonable grounds for suspicion” and “good reason”—that are specified in the amendment. Teachers are professional, intelligent people who know exactly what those terms mean in the everyday sense, and they do not need to be told. Indeed, most of the terms that are listed have been part of the searching provision since 2007, when the power to search pupils without consent for knives and weapons was introduced under the Violent Crime Reduction Act 2006. At that time, legislation existed that gave a head teacher the power to keep order in their school and made it illegal to carry an offensive weapon in school. A head teacher, with reasonable suspicion, could search a desk or locker without a pupil’s consent, search a bag or jacket with consent, and ask the police to do a personal search. The police could, with reasonable suspicion, enter a school to search without a head teacher’s consent, undertake a personal search without a pupil’s consent, and undertake an unannounced search of more than one pupil in a school.

There was concern at the time that offending pupils might escape detection by refusing consent for a school staff search of a bag or jacket, or by disposing of a weapon while the school asked the police to attend. So the then Government said that they wanted to deter the small minority of young people who were tempted to carry a weapon in school by making it clear that the school had the authority to search them on reasonable suspicion. That provision also included the power to use force to conduct a search. So it seems that terms such as “search,” “reasonable suspicion” and “force” were well understood in those days.

Graham Stuart (Conservative, Beverley and Holderness)

With the shadow Minister rightly probing these issues, I remind the Minister that the Select Committee, at the end of an extensive inquiry, supported the proposals on search. In that recommendation we added a notice about the need for training.

I want to pick up the points made about clarifying how these powers should be used. Could the Minister say something about the training of teachers, so that, for the protection of both pupils and teachers, there is clarity? In some ways, if properly instituted, that would help answer the shadow Minister’s points, even if it does not make it into the Bill.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Training is very important. As I said, two thirds of newly qualified teachers are unhappy with the level of training that they received from the education faculty or the teacher training college in behaviour management generally. There is a case for doing more on that.

The head teacher will authorise staff—staff have to be authorised by the head teacher before they carry out a search—and the level of training that the teacher has had, or the competence of that teacher, will be factors taken into account by the head before giving authorisation.

Graham Stuart (Conservative, Beverley and Holderness)

The Minister makes a fair point about the need to improve the training of teachers, giving them the basic classroom skills. That is another point made in our report. I would like to push him a little further on the specific requirements that are being extended. I do not know what form it might take, but it would be useful in considering the Bill if we could have more clarity from the Government on how that training might be improved, at what stage it might be offered, whether it requires any additional funding, and so on.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

On newly qualified teachers, we are reviewing the initial teacher training standards. That is ongoing work. The Government’s direction of travel is not to start to tell head teachers how to run their school on a day-to-day basis. It is up to the head teachers, who are professionals, to decide what training they wish to make available to their professional staff, whether that is how to teach long division or how to conduct a search in exceptional circumstances.

It would be wrong for me as a Minister to start to say that every teacher authorised by a head teacher should have had x hours of training by these different approved training providers in issues of search, and so on. That is not a direction of travel that my hon. Friend would want to see us follow, and I am sure we would be criticised by his Committee if we took such an approach to the development of education policy generally.

Graham Stuart (Conservative, Beverley and Holderness)

The Government are rightly making a distinction between not telling heads and teachers how they should carry out their duties and prescribing that they should carry out certain duties. It would not be outside the Government’s philosophy to suggest that those who are designated should have appropriate training, as decided by the head. I wish to make it clear that teachers exercising such powers might be expected to have had some form of training, both for their own safety and for the safety of their pupils.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I understand my hon. Friend’s point, and I accept that head teachers will need to be careful about whom they authorise in their school; they need to be sure that the teachers who are authorised are competent to carry out such searches. However, I believe that we have to trust our head teachers—they are professionals—to determine what that level of training should be. Indeed, some teachers may not need training if the head is satisfied that their experience over the years means that they are already competent to carry out such searches.

The proposal to extend the search powers to include alcohol, illegal drugs, stolen property and any items that pupils ought not to bring to school was recommended by Sir Alan Steer in his report to the then Secretary of State in July 2008. It did not seem necessary to recommend that guidance should be provided to teachers to explain what was meant by the terms used in the search provisions. I suggest that teachers are managing quite well without our defining those terms. We should not seek to micro-manage how teachers use the powers. Defining the terms in guidance is more likely to hamper teachers than to help them understand the powers.

Although we do not wish to define particular items in guidance, existing law and the amendments to clause 2 require teachers to have regard to guidance from the Secretary of State in determining whether there is a good reason to dispose of alcohol and illegal drugs or to examine or delete images on electronic devices. We believe that this approach will assist teachers when there is an element of discretion.

Before dealing with the last amendment, I turn to two points raised by the hon. Member for Foyle. He asked whether legal action could be taken if a school decided to have a no-search policy. It is a power, not a duty. The provisions themselves would not lead to a penalty if it was decided not to use them.

Mark Hendrick (Labour, Preston)

The Minister paints a scenario in which some teachers might be trained and others not. If, for purposes of consistency, the head deemed that all teachers should be authorised, what would happen if a teacher who was authorised but not trained was seen to have misused the power? Would the head be culpable?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Teachers who misuse the power would be responsible for their actions. The hon. Gentleman draws me into a hypothetical scenario in which there might be legal implications. If a head teacher was generally seen not to be competent in exercising his powers, it would be a matter for the head teacher. No one could give a view on the legal implications of the scenario outlined by the hon. Gentleman, and I will not be drawn on it.

Mark Hendrick (Labour, Preston)

I asked that question because if a head teacher does not authorise all the teachers, some will have the power and some will not. Depending on the allocation of teachers, some pupils could be more at risk than others.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The scenario painted by the hon. Gentleman is too detailed for this debate. The legal position is clear, and the purpose of the Bill is to make it even clearer. The head teacher must authorise those members of staff that he regards as being competent to carry out searches. Teachers that are not so authorised do not have the power given to the teaching profession under the Bill and previous legislation to conduct a search. That is clear, and that is all that we need to understand in determining our support for these measures.

The hon. Member for Foyle made two other points. He asked what was meant by searching a person. I shall clarify the position, but it is no different from that given in previous legislation. The searcher may require a pupil to remove only outer clothing, which is defined in section 550ZB of the Education Act 1996 as hats, shoes, boots, gloves or scarves and

“any item of clothing that is being worn otherwise than wholly next to the skin or immediately over a garment being worn as underwear.”

The hon. Gentleman also referred to the search powers as “stop and search.” They are not at all the same. Perhaps it has something to do with the area that he represents but it is not right to link the powers in that way. Teachers will know the pupil, and will be able to search only if they have a reasonable suspicion, and not on the off-chance that they might find something that the pupil should not have.

Amendment 17 seeks to ensure that the searching provisions will apply to academies. I can assure all hon. Members that sections 550ZA to 550ZD, which clause 2 seeks to amend, already apply to academies, including those established under the Academies Act 2010. It is the Government’s intention to apply the searching powers in the clause equally to all state-funded schools. As I have said previously, our policy on academies is part of a comprehensive approach to driving up standards. The Government are determined to raise academic standards and improve behaviour in all schools. It is therefore essential that staff in academies have the same powers to search pupils as those in maintained schools. The existing law provides for that, and the clause will not alter that, so the amendment is unnecessary.

I thank all hon. Members for their amendments, which seek to improve the drafting of the provisions. Good behaviour is about leadership and ethos, but the power to search without consent is an important power, backed by head teacher unions. The powers will include a number of important safeguards and are compatible with human rights legislation. I therefore urge the hon. Member for Cardiff West to withdraw his amendment.

Kevin Brennan (Labour, Cardiff West)

I thank the Minister for his detailed response and for his courteous and detailed ways when dealing with interventions during our discussions. However, I think the debate raised more questions than it answered. I have a sense—perhaps I am not expressing it articulately —that there is something undercooked about the provisions and that they will not emerge from the other end of the proceedings, once the Bill has been through the House and the other place, in exactly the same form as we see them now. However, I may be wrong, and perhaps at the end of the process I will be admitting that.

I remind the Committee that amendment 10, the lead amendment of the group, would ensure that the powers were necessary and that there was an agreed statement between the Minister and the inspectorate about the necessity of introducing them and reporting to Parliament. It helped to form the basis of our discussions on the clause, about whether such powers are necessary and practical. I have a concern about the Minister’s response. He rightly, trying to be helpful to the Committee, described a scenario where a teacher might have to conduct a search in an emergency situation where a pupil was in danger of causing harm to themselves—as was in his example—and others. It would therefore be necessary for a search to be undertaken without a witness by a member of staff, who could be of the opposite sex to the pupil involved. The problem is that the power seems to be intended to be used in an emergency; I think we can agree on that. It is supposed to be a practical tool that a teacher has at their disposal when faced with a crisis in their classroom. That is, I think, the Minister’s genuine intention underlying the proposal.

However, the power will not be available to all teachers during a crisis in their classroom. In order to exercise that power, they would have to have had prior authorisation from their head teacher as someone who was suitable, had appropriate training, was trusted by the head teacher, and was suitably experienced, or was suitable according to whatever the head teacher judged at a local level, to conduct a search. The power intends to allow teachers to deal with an emergency in their classroom, but it will not be available for them to use. The Minister gave an interesting example of a pupil in a science class, whom the teacher might reasonably suspect has got hold of a toxic substance and could possibly cause harm to themselves by ingesting that substance. I completely agree with the Minister that that scenario could occur. Let us deal with it.

If the science teacher had not been given prior authorisation, they could not exercise the power that the Minister thinks is so essential that he is placing it in the Bill. That is the first point. The Minister may say that any sensible head teacher would ensure that the science teachers, because they deal with toxic substances, were the ones who were authorised to carry out the search. That may be correct, although it might not happen in all circumstances.

However, it is equally likely that a pupil would smuggle out a substance from the science lesson and take it into a classroom with a teacher who is less experienced and perhaps does not control their class as well, and whom the head teacher therefore thinks needs more training before they can be authorised to conduct a search. That teacher might have a reasonable suspicion that exactly the same circumstances were about to occur, but the power that the Minister thinks it is essential for teachers to have would not be available to that teacher under the clause as drafted.

Graham Stuart (Conservative, Beverley and Holderness)

As ever, the hon. Gentleman is making a powerful speech, but as the Minister asked him—I, too, would like clarity on this—do the Opposition believe, then, that all teachers should automatically have this power? Surely it has been made clear that it is up to the head teacher. They may provide that all members of their teaching staff have the power, but if they follow the hon. Gentleman’s logic, there may be circumstances in which they choose not to do that. It is down to the head teacher within the law. What does the hon. Gentleman want to do? What does the Labour party want to do?

Kevin Brennan (Labour, Cardiff West)

We are probing the Government’s policy, not our policy, but let me say in an attempt to be helpful, as ever, to the Chair of the Select Committee—he knows that I have great respect for the seriousness with which he undertakes his duties in that regard—that the point I am making is that it is for the Minister to explain to the Committee whether he envisages that all teachers should be trained and authorised to use the power. That would make it a power that could be used in the scenario that the Minister himself suggested—an emergency classroom situation. I think that is what he envisaged. That is one possibility. I am not suggesting that it should happen. I am simply trying to understand the inner workings of the Minister’s mind on this issue.

The second possibility is the other matter that we are exploring. It may turn out, once the issue has been debated in full, that perhaps this is not a practically usable power and that the existing powers, which teachers in practice would use to deal with the scenario that the Minister outlined, cover the situation already. I know that the Chair of the Select Committee would not want us to put in any Bill a clause that was otiose.

Graham Stuart (Conservative, Beverley and Holderness)

The shadow Minister is showing his normal fluency and the skills that he doubtless honed at the Oxford union. I would not seek to out-debate him—I do not think I could—but he has used those skills to avoid answering the perfectly reasonable question of what, on the matter of search powers, Her Majesty’s Opposition think should be the situation. Let me put this to him. We will have hours of debate in all sorts of Committees like this if he does not understand philosophically that the Minister does not believe in telling head teachers precisely what to do and therefore will refuse to say precisely what every head must do. He thinks, as I do, that we should leave the decision to the discretion of heads and that it would be wrong of Ministers to be explicit in the Bill, because then, like Pavlov’s dog, teachers out there might think that like the last Government, the present Government intend to prescribe everything that they do and exactly how they should do it.

Kevin Brennan (Labour, Cardiff West)

As the hon. Gentleman has studied my CV so carefully, he will also know that I studied philosophy, so I do have an understanding of this. Actually, my debating skills were learned in a working-class household in south Wales, not in the Oxford union—they were just noticed there. [Interruption.] The hon. Gentleman says from a sedentary position that I am no Nye Bevan. That is one proposition of his to which I fully assent.

To return to the issue that we are debating, I am seriously not trying to make a petty debating point. I am trying seriously to understand whether the clause stands up to the stress testing that we are here to submit it to. That is our job and it is what we are doing. We are putting it under stress to see whether it cracks, and so far some fissures are emerging.

Meg Munn (Labour, Sheffield, Heeley)

The point that I and some of my hon. Friends were making was that this is not about whether head teachers can make good decisions, but about whether we are enacting legislation that will make bad things, rather than positive things, more likely. As I said clearly in my speech, I am not against searching, but I am concerned about the specific circumstances. I think they will put pupils, teachers and other staff members in difficult situations, rather than allowing the use of the wide range of tactics and practices that we heard about in the evidence sessions.

Kevin Brennan (Labour, Cardiff West)

Yes, I agree with what my hon. Friend said. Searches are necessary from time to time, in law, and as the Minister correctly stated, significant changes have been made in recent years to clarify in law the circumstances in which such searches should happen. The previous Government deliberately put a provision in place that required a search to be done by an authorised member of staff—and that is the point that we are now debating. The provisions were deliberately made in a way that ensured a witness was present to protect all, which means not only pupils but staff, who are equally important.

In my teaching career, I was in such circumstances in a practical sense. I remember an occasion when a senior member of staff was having a discussion with a young girl who displayed behaviour that was very unsuitable for her age. She was on her own, having a discussion with Mr Walker in the head of year’s room, and fortunately, for his sake, I witnessed it. He was on his own with that young girl, and she acted in a way that could have put him in a very compromising situation. Fortunately, I was passing and witnessed what occurred, and I was able to ensure that we could report it immediately to the head teacher and make a record of it, in case that student made an accusation against a very senior and experienced teacher.

This matter is serious, and I know that the Minister takes it seriously too, which is why I am concerned that we have not got to the bottom of the clause’s intention yet.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The shadow Minister gives an example from his experience as a teacher, and one of his key points was that he and the other teacher concerned were able to notify the head, and a record was taken. If the powers are going to be exercised so exceptionally, and if they are going to be exercised with the head’s approval, does it need to be written in the Bill or elsewhere—in the school rules, or whatever—that when they are exercised, the teacher should report the circumstances to the head, who should then make a decision as to whether a record is kept, because subsequent controversies could emerge?

Kevin Brennan (Labour, Cardiff West)

Yes, indeed, it does. Where it needs to be made clear could be a matter for debate—it may not be something for the Bill necessarily. The Minister would also assent that it would be good practice to make that clear and bad practice not to. For the protection of all concerned, keeping a written record is extremely important, even if that is called bureaucracy—unnecessary bureaucracy is bad, but not all bureaucracy is. Writing such things down can be important, because it can save a lot of extra work later, which includes unnecessary court cases and accusations going further than they should.

Amendment 10 and amendment 11, which asks for a report to be placed before Parliament to say that such powers are necessary, are designed to probe the Minister’s thinking, and I am interested in his response. At the moment, I am unsure whether to press the amendments to a vote—at the appropriate time. The intention was to probe, because we need to put our concerns on record at some point.

Amendment 12 relates to training and the dignity of the child. In particular, it refers to special educational needs. The Minister is a man of his word. On Tuesday, he said that the Green Paper on SEN was imminent and, for once, it was indeed imminent—it arrived the very next day. I congratulate the Minister on his prescience and use of language. It raises questions, however. In his response, will he say whether he has any initial thoughts on whether, in the clause and the amendments, the proposals in the Government’s Green Paper on SEN will have any impact on the need for the training of teachers dealing with search powers in relation to SEN?

Those commenting on the Government’s Green Paper have suggested that there could be a big reduction in the number of children classed as having SEN. In fact, the Government have stated that they think too many children are classed as having SEN. The figure that was bandied about was that some 20% of pupils had an SEN of some kind or another, which was the figure in the Warnock report many years ago. Sometimes that is confused in people’s minds with those who have a statement of SEN, which is a much smaller number—some 2%. There is sometimes a bit of blurring when this issue is discussed.

Can the Minister clarify what impact the Green Paper will have on our amendment calling for more training for teachers dealing with searches in relation to pupils with SEN? Does he envisage far fewer children being classed as having SEN? We discussed this broadly in the debate on Tuesday, but will that have an impact on how much training there needs to be and how many pupils will be classed with SEN? Will it be the case that some pupils currently classed as having SEN will not be classed as such later, meaning that no search training will be required for teachers?

On amendment 15, the Minister said that the terms are adequately defined in law already. It is a probing amendment, and I am grateful for his assurance that he believes that they are already adequately defined in law. He referred to the comments made by the hon. Member for Foyle on how this was nothing to do with stop and search, so it is a completely separate sort of provision. I will not press the amendment. Broadly speaking, it is my view that it is perfectly reasonable for teachers to have the right to confiscate contraband within school rules. Search, in the proper circumstances, as currently defined, can be justified.

Amendment 16, which forms part of this long group of amendments, asks for a reinstatement of the requirement to have a witness in relation to searches. Currently, the case that the Minister has tried to make for the necessity for the power to search without a witness is unproved. During the course of our debate, the case has been left unproved. Rather than us debate it ad nauseum, until the case is proved one way or another, it would be sensible for us to at least register our concern about this by pressing for a division on amendment 16, so that we can put on record our concerns on the lack of a requirement for a witness to be present and on whether these powers are usable or useful. We might have to return to this area of the Bill on Report. In the meantime, we might get more clarity from the Government about how they think the powers will work.

On amendment 17, the Minister confirmed that the powers “should apply” equally to academies. When he comes back, finally, would he consider inserting “will” instead of “should,” because the two words have different meanings?

James Duddridge (Conservative, Rochford and Southend East)

On a point of order, Mr Walker. The shadow Minister has for the fifth time referred to when the Minister comes back. May I seek clarification? My understanding is that the Minister has made his concluding remarks. I know two days have passed, and we are not fresh to the process at the beginning of the Committee stage, but perhaps you could refresh my mind.

Charles Walker (Conservative, Broxbourne)

I thank Mr Duddridge for the point of order. The Minister is perfectly free to do what he likes. He can come back or not, as he chooses, but that is a choice for the Minister at this stage.

Kevin Brennan (Labour, Cardiff West)

Shall I continue, Mr Walker?

Charles Walker (Conservative, Broxbourne)

I would be delighted.

Kevin Brennan (Labour, Cardiff West)

As ever, Mr Walker, your ruling from the Chair is absolutely correct. I repeat, the Opposition’s intention in Committee is to get through the Bill in the time allocated, but also to scrutinise thoroughly those parts of the Bill that we believe need it. It is entirely at the Minister’s liberty whether he wishes to respond to my points, but in my experience the Minister has always wanted to respond to the Opposition’s points. He does so courteously and is always informative and helpful—

Graham Stuart (Conservative, Beverley and Holderness)

And succinct.

Kevin Brennan (Labour, Cardiff West)

As well as succinct, which of course is a virtue in government—but not always in opposition.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I welcome the hon. Gentleman’s support for the provisions to allow searching for contraband, as he put it, and for items banned under the school rules. I commend the Green Paper to him, which I think he will find an excellent read. It sets out thoroughly and well our policy on special educational needs, which has widespread support in the country.

Kevin Brennan (Labour, Cardiff West)

Although I said that being succinct was a virtue—

Graham Stuart (Conservative, Beverley and Holderness)

Only in government.

Kevin Brennan (Labour, Cardiff West)

Only in government. However, I asked the Minister for a little more, just to let us know about any influence over the powers of search.

Pat Glass (Labour, North West Durham)

I was interested in the Minister’s comments about the Green Paper, and I agree with some things in the thrust of it, but I must say that it is the greenest Green Paper I have ever seen. It sets out the problems well, but unless I have read it incorrectly, it does not set out clearly the Government’s policy on what they intend to do about those problems.

Graham Stuart (Conservative, Beverley and Holderness)

On a point of order, Mr Walker. Is there any process by which this debate will ever come to an end?

Charles Walker (Conservative, Broxbourne)

I am new to this, but the debate will come to an end when I decide it comes to an end. Too many Members are trying to chair the debate, from a sedentary position.

Kevin Brennan (Labour, Cardiff West)

Thank you, Mr Walker. As ever, I completely respect the Chair’s rulings.

I note the intervention of my hon. Friend the Member for North West Durham. I am sure there will be much further discussion of the Green Paper and its implications, but that is not for us now.

I wanted to check that one point with the Minister. I asked him whether the provision will apply to academies, and he said that it “should apply”—I wrote that down when he said it. Can he say to the Committee that it “will” apply equally, or can he only use “should”?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

If I may put the shadow Minister out of his misery, the school rules provision will apply to academies through regulations, a draft of which we have circulated.

Kevin Brennan (Labour, Cardiff West)

I am grateful to the Minister and, with your permission, Mr Walker, we may conclude this part of the debate. I beg to ask leave to withdraw the amendment.

Kevin Brennan (Labour, Cardiff West)

I beg to move amendment 13, in clause 2, page 4, line 13, after ‘determined’, insert

‘, approved by the Secretary of State’.

To put the Committee out of its misery, let me say that this is a probing amendment. We want to probe the Government on which articles may be searched for in education settings that do not have school rules as defined in the Education and Inspections Act 2006.

Under previous legislation, school staff have powers to search for prohibited items and to seize them from pupils. As we have heard, those items include weapons, alcohol, drugs and stolen goods. Knives, other offensive weapons, drugs and so on are already covered in section 550ZA of the Education Act 1996, which deals with the power of members of staff to search pupils for prohibited items in England. The clause extends that power so that staff can search for and seize any item banned by the school rules.

Section 89 of the 2006 Act includes a definition of school rules, but there is no statutory definition of school rules in independent schools. Is that correct? If there is no definition of school rules in independent schools, does that also apply to academies and free schools? I think it does, but I should be grateful if the Minister would say whether that is correct.

As it stands, the clause could extend very broad search powers to teachers in independent schools, and that includes academies and free schools, if the assumption about their forming part of the proposals is correct. The Bill proposes that school rules in independent schools should be defined in regulations, but those regulations have yet to be published, and we do not have them before us. If I am wrong about that, I apologise, and I would certainly like to see them.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

We did circulate the regulations to the Committee. I think we sent them round on Monday; it may have been later than 4.34 pm, but it was at some point on Monday. They are on the Education Bill, clause 2(2)(c)(4B)(b), illustrative content of regulations. The regulations set out the processes that academies must follow to define and publicise items banned by the school rules.

Kevin Brennan (Labour, Cardiff West)

I am grateful that they have been sent around. If our vast Opposition team of radar-scanning individuals has missed that document, I apologise to the Committee. It is helpful that the regulations have been sent out, although obviously it would have been helpful if they had been sent out earlier.

If you will indulge me for a second, Mr Walker, this raises a point about the process by which such information is circulated. I understand why it is lodged officially with the Committee and then sent out, but it would be helpful—I do not know whether this is possible—if the Minister could send it directly to us at the same time as the Committee, without doing any discourtesy to the Committee. In that way, hon. Members would have the opportunity to see things as soon as they became available. A forensic examination of the computer origin of the famous 4.34 document showed which official—I am not allowed to refer to him, and he may or may not be nearby—had had it on their computer the previous Thursday, even though we did not receive it until later. However, the point is that it would be useful if we could get information as soon as it was sent to the Committee, because the Committee Clerks have lots of work to do.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I agree with the shadow Minister. It is important that the Opposition have these documents in a timely way, and I want to ensure that that happens. We will send them to all members of the Committee at the same time as we send them to the Committee Chair.

Kevin Brennan (Labour, Cardiff West)

That is extremely helpful. I am grateful to the Minister for agreeing to do that. In his remarks, he may be able to refer to those regulations, which we have not had a chance to study properly yet.

The amendment, which is probing, would mean that rules in independent schools, including academies and free schools, would have to be approved by the Secretary of State before teachers gained the power to search and seize any item found by virtue of their being mentioned in school rules. I want to hear the Minister’s explanation of that.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Clause 2 permits only searches for items banned by the school rules where the items have been identified in the rules as an item that may be searched for. The power to search for items banned by the school rules is linked in the clause to section 89 of the Education and Inspections Act 2006, which refers to the determination by the head teacher of the behaviour policy. In other words, for the power to apply, the school rules must have been made under the provisions of section 89, with all the consultations and publication required by that provision.

However, as the hon. Member for Cardiff West rightly pointed out, that section applies only to maintained schools and non-maintained special schools. In order that other schools, such as academies, can also search for items banned by their rules, we have included provisions in the Bill to enable regulations to be made that will mirror the provisions in sections 88 and 89 of the 2006 Act. Illustrative regulations for this purpose have been circulated to the Committee. The Government consider that it is necessary to require schools to list the items for which a search can be conducted in rules made in accordance with the requirements of section 89, or regulations made under new section 550ZA(4B) of the Education Act 1996, to ensure that they are sufficiently accessible and their application foreseeable to all affected by them.

The amendment would mean that school rules made under the regulations, rather than under section 89, must be approved by the Secretary of State for each individual academy before academy staff can carry out searches for the items listed in them. I appreciate that the intention of the amendment is that the items that schools are permitted to search for should be subject to appropriate scrutiny. The legislation will do that through regulation for academies, mirroring the provisions for maintained schools.

While we have made it clear that we want to give academies freedom to innovate, we also think it is important that they follow certain basic standards that apply to all schools. That is particularly important when it comes to the rights of children and to communicating their expectations of behaviour to pupils and their parents. Therefore, the legislation creates a number of important safeguards.

First, maintained schools and academies will be required to list in their rules the items liable for a search under the powers. That is an important safeguard, which ensures that pupils and parents know which items are unacceptable in school and so may be searched for. Secondly, governing bodies are legally required to consult the head teacher, school staff, parents and pupils on their written statement of behaviour principles, and the head teacher is required to take account of this statement when developing the school's behaviour policy.

As the framework for developing and consulting on the school behaviour policy is already established in the Bill, it is unnecessary to introduce an additional requirement for the Secretary of State to approve the items that may be searched for in either academies or maintained schools. I therefore urge the hon. Gentleman to withdraw his amendment.

Kevin Brennan (Labour, Cardiff West)

I am grateful to the Minister for that explanation. Obviously, we will want to study the draft regulations that he has already sent round. It was helpful of the Minister to put the Government’s position on the record, confirming that they will expect academies to be in a similar position to maintained schools. On that basis, I beg to ask leave to withdraw the amendment.

Kevin Brennan (Labour, Cardiff West)

I beg to move amendment 14, in clause 2, page 5, line 32, at end insert

Charles Walker (Conservative, Broxbourne)

With this it will be convenient to take amendment 22, in clause 3, page 7, line 32, at end insert

Kevin Brennan (Labour, Cardiff West)

If nothing else, our proceedings are performing a useful training exercise for us all of whatever level of experience and whatever role we are serving in Committee. Some members of the Committee will wonder why we divided on amendment 16 when we did instead of during the previous debate, but that was because amendment 13 had not yet been debated and it relates to an earlier provision in the Bill. I know that hon. Members will welcome that kernel of parliamentary knowledge to add to their procedural toolkit, to use the term that was heavily criticised in the press when a Minister used it.

The amendment is about training. It would ensure that staff using powers to search data and files have appropriate training and seniority. It is grouped with amendment 22, which comes with another little arcane piece of parliamentary procedure because it refers to clause 3. We will all be intrigued to see how we deal with that. We tabled it to probe safeguards for staff in the deletion of material that might cause the adult to commit a criminal offence. The clause allows teachers to search and seize mobile phones and other electronic devices from students, and to view and erase the material held on them.

Understandably, we want to examine carefully the implications of such a proposal and a fairly wide-ranging number of organisations have expressed concern about it. The power will be given to teachers, and I wish to refer to what was said about the provision by their representative body, the National Union of Teachers, of which I was once a member. I told the Committee on Tuesday that I had never been a member of the NASUWT, but I was a member of the National Union of Teachers, although I no longer am. It states:

“This provision places the burden of proving that erasure of data from an electronic device was lawful on the person who erases or disposes of that data. This is a serious disincentive to use of the power. It means that a teacher who has exercised the power could be the subject of legal proceedings in which it is up to him or her to prove that the power has been lawfully exercised”.

The amendment therefore seeks to protect staff, who might undertake to use the new powers that the Bill affords them, from criminal prosecution, and thereby protect schools and teachers from expensive litigation.

In addition, it is not clear what exactly the full implications of this clause would be—the Bill does not absolutely make that clear. What would happen, for example, if a teacher confiscated a mobile phone or electronic device on suspicion that it contained unsuitable images of some kind, and in the process of searching through the device to find those unsuitable images, came across illegal images which might be very serious indeed, such as images of child pornography, that could normally only be viewed legally by specific, nominated police officers who have specific authority and training to do so? I may be wrong about this, but we need to know the answer. My understanding is that there are certain categories of image that it is not only illegal to possess but illegal to view unless you are a specifically nominated and trained member of the police force. In a case such as this, where the images are of such a serious criminal nature as to be covered by, I think, the 2003 Act, is it possible that a member of staff would be committing a criminal offence simply by viewing the images?

Dan Rogerson (Liberal Democrat, North Cornwall)

The hon. Gentleman pursues an important line of thought and I understand his reasons for raising these concerns. However, in my recollection, there have been a number of cases where prosecutions have been brought against someone after evidence has been brought to light when a computer has been repaired and a technician has come across the image. I am not aware of any case in which one of those technicians has later been prosecuted for having viewed an image.

Kevin Brennan (Labour, Cardiff West)

The hon. Gentleman may well be right. This is a very tricky area of the law, because one has to make a judgment about the intent of persons. I have certainly come across cases in my own constituency casework—these are the extremely difficult cases we all have to deal with as MPs sometimes—of people who say that the images that they accessed were accessed during the course of some other activity, but have nevertheless been subject to quite strong pressure to at least accept a police caution and be placed on the sex offenders register for a period of time. It is not for any of us here to act as judge and jury on such cases; I am simply asking what thought the Government have given to what would happen under such circumstances, which may well occur under this clause.

Meg Munn (Labour, Sheffield, Heeley)

It is entirely right that my hon. Friend probes the legal part of this, but, as I believe he said earlier, it is also about training, because these issues could well be significant in child-protection terms and staff will need to be properly trained to recognise the right thing to do, not just to protect themselves, but potentially in relation to children who may be victims.

Kevin Brennan (Labour, Cardiff West)

My hon. Friend is, as ever, very perceptive on this and she may want to develop her remarks further in the course of the debate. I will come to some of these issues during the course of my remarks on these two amendments. I would be very interested to hear the thinking of the Minister and the Government around that very serious kind of case. The Minister for Further Education, Skills and Lifelong Learning may be able to satisfy us that that is a concern we do not need to worry about. I look forward to that—he is a man of many quotations. I have never heard him say, “Brevity is the soul of wit”, but we look forward to his brief reply, listening to the admonitions of his own Whip.

The other point is about the rights of students. I am clear that we absolutely must be extremely careful about protecting teachers from wrongful allegations. The Bill does some helpful things in that regard, which we shall be able to welcome later on. However, we also need to consider students and children and, in some cases in these provisions, adults; let us not forget that the provisions go beyond the age of 16 and into further education, where in this age of learning through life students can be any age, from 16—or these days sometimes as young as 14—to 18 or beyond. There are thus significant issues about the rights of adults, as well as the rights of children. What about the privacy rights of students? The provisions will affect students—not just children. [Interruption.] I apologise once again to the Chair of the Education Committee and to Hansard. Even in a school—I have certainly come across this—there might be married students, or students perfectly legally in a civil partnership. It is perfectly possible. Does the clause allow teachers or lecturers to trawl through students’ mobile devices, on reasonable suspicion, when those students may be adults, not children?

John Hayes (Conservative, South Holland and The Deepings)

For the sake of brevity, to some degree, it might be as well to clarify this point now. I am not quite following the hon. Gentleman’s logic, in the sense that that privacy would apply to a bag that might be searched, in the way my hon. Friend the Member for Bognor Regis and Littlehampton described earlier, or a desk or a person. Why does the hon. Gentleman attribute to an electronic device a particular kind of privacy that might not apply in those other instances?

Kevin Brennan (Labour, Cardiff West)

I think that we know the huge amount of data that can be contained in a small electronic device, whether that is written data, images or video and film. I have my entire record collection here in my pocket, and I am happy for the Minister to trawl through it.

John Hayes (Conservative, South Holland and The Deepings)

“Just One Look” would be good enough for me. The hon. Gentleman will understand the resonance of that.

The point is that we are debating not scale, but kind. It is true that as a matter of scale one can store a great deal on electronic devices, but the point he was making was about not scale, but kind. The kind of material that is stored on a phone or electronic device is not different in qualitative terms, although it might be quantitatively different, from what might be stored as hard copy.

Kevin Brennan (Labour, Cardiff West)

That is a good debating point, but it is not true. There is a significant difference in the type of information. I do not think I have “Just One Look”, by the way. I will check later. There is a lot on it.

The quality of the information could be significantly different. There could be a huge amount of sensitive and personal data on an electronic device. I would be happy for the Minister to scroll through my iPod, which I have in my left pocket. I might not be so happy—I will not say why—for him to scroll through my iPhone, which I have in my right pocket. It contains personal pictures of my family, some information to do with my bank accounts and personal information, which I would not want him to look through even though he is a trusted member of staff in two Government Departments. I would not give him the pass code to get into my phone if he found it. I would refuse flatly to allow him to do it. That is not because there is anything in it that is illegal. It is because there is personal and private information in it, which I would not be happy for someone to take from me, unless a very high standard was required, as there is currently in law, for someone to trawl through the device, such as a police officer.

Charles Walker (Conservative, Broxbourne)

With this it will be convenient to take amendment 22, in clause 3, page 7, line 32, at end insert

Kevin Brennan (Labour, Cardiff West)

Good afternoon, Mr Walker, and, through you, good afternoon to the Committee. Before we adjourned, we were discussing amendments 14 and 22 relating to clauses 2 and 3 on the ability to search the contents of electronic devices and mobile phones. We were debating the implications of such action, and I was saying that, in some cases, it could be fairly innocuous but that, in other cases, students or adults might have private information on their mobile phones and electronic devices. We need to understand the implications of the new provisions for the protection of teachers and lecturers who might undertake confiscation measures and look through information, deciding whether to delete it or otherwise, as well as the implications for the privacy of the individual, whether a child or an adult, and how it relates to their broader rights under other legislation.

How could teachers and lecturers prove that they had not misused the power under the clause? What safeguards are in place for them in such circumstances? The Minister will want to tell the Committee his thinking on the matter and explain how teachers and lecturers can be protected from accusations, as well as how individuals can be protected from teachers and lecturers potentially misusing such powers. Not everyone is a saint, and we must be absolutely clear that we have minimised the potential for the powers to be misused. What safeguards are in place? I understand fully the Government’s desire to avoid bureaucracy, and we discussed that earlier. There is good bureaucracy as well as bad bureaucracy. We need to wipe out bad bureaucracy, but ensure that we do not take away protections afforded by the good bureaucracy.

Stephen McPartland (Conservative, Stevenage)

The shadow Minister has raised concerns about the misuse of powers by some of our professionals, whom we should trust on the front line. However, as drafted, the amendment would give a greater blanket protection to all teachers than the protection afforded under the Bill. It would not discourage anyone from misusing such powers.

Kevin Brennan (Labour, Cardiff West)

I was appalled as the hon. Gentleman by the swiftness with which I have become used to how such things are done in Opposition, but it is not uncommon to draft an amendment in order to discuss the principles of a clause. The Minister might point out later, with the aid of legal advice, how flawed the amendment is. There might well be flaws in some of our amendments. I accept that, but imperfect as they might be, it does not take away from the fact that we need the answers to the questions asked during our debates.

I understand the need to avoid bureaucracy and to prevent the misuse of electronic devices in our schools and colleges. I want to support the Minister by saying that he is right that we should be concerned about such misuse. We should be appalled and concerned—[Interruption.] Even in Committee, occasionally, Mr Walker, we should be concerned about the potential misuse of mobile phones and electronic devices. I had better check that mine is switched off, if I can find it.

Such devices are misused and there is that potential. We know of instances of teachers being filmed without their consent during the course of lessons, when pupils are deliberately acting up. Thanks to the Conservative party, we know of some examples of teachers filming their pupils without their consent, but we shall not stray into that area. We know that pupils have misused mobile phones in order to film teachers inappropriately, and that electronic devices and the use of images can be used for cyber-bullying between pupils and by pupils of teachers. Such behaviour is completely unacceptable, and the Minister is right to think about how best to deal with the phenomenon which, obviously, has become more prevalent in recent years, as electronic devices have become more sophisticated.

Graham Stuart (Conservative, Beverley and Holderness)

One of the great benefits of this form of scrutiny is when people such as the hon. Member for North West Durham bring their personal experience to bear in the debate. In that spirit, in the shadow Minister’s own professional career, were there ever any instances when he perhaps exceeded the rules and abused his position of power?

Kevin Brennan (Labour, Cardiff West)

I think I would take the fifth amendment, if it existed in our constitution. I am being tempted to implicate myself in all sorts of ways. To try and answer the hon. Gentleman in the spirit probably intended, I suspect that I did things as a member of staff that might not technically be correct, but nobody’s perfect.

It is up to the Minister to show that he has thoroughly thought through the implications of his proposal as it stands. I offer him our strong support in wishing to counter cyber-bullying and the misuse of electronic devices, but we want to know that what he is doing here will work and will not put anyone into any danger, fundamentally infringe any important rights or increase the likelihood of legal challenge. We are happy to work with him to consider how best to deal with the issues, but through the amendments I want to probe in depth exactly what the clauses do.

For example, under the provisions, can teachers look through mobile devices at will, albeit with some reasonable suspicion? Can they go right through such devices? Or does the Minister expect that the head teacher or some senior member of staff would have to be present while that was undertaken? Should students have any particular rights of veto with regard to certain files in a mobile device, were they present and able to indicate their unhappiness about certain areas of the mobile devices being explored? Let us bear in mind, as I have said all along, that we are talking about adults and not only children.

On that point, amendment 22 refers to further education—anyone from the age of 14, possibly up to 18 and beyond. The National Union of Teachers has, for example, expressed some concern in its submission about that provision as it relates to FE. Sections 1 to 3 of the Computer Misuse Act 1990, regardless “of an individual’s motivation”, make it a criminal offence—I shall paraphrase the list of three points—to gain access to computer files or software without permission, such as using someone else’s password to access files; to gain unauthorised access, as above, in order to commit a further criminal act, such as fraud, although hopefully that is not what we would be talking about in this case; or to impair the operation of a computer or program, for example with viruses or denial of service attacks. Again, we hope that the last point would not be the provision relevant to us, and that we are mainly concerned with the first one.

Ministers need to clarify how these provisions will relate to existing legislation, particularly for college principals and other staff, who are expected to seize electronic devices on which there might be indecent imagery and other material. This relates to a point I made earlier; could the Minister clarify for further education institutions as well for schools whether staff would be liable for prosecution if they opened and viewed such material?

The NUT also says in its submission that, as the Bill does not afford the same protection to college staff as it does to school teachers in relation to malicious allegations, it is particularly important that staff conducting searches in colleges are protected from potential prosecution or litigation. I would like the Minister to deal with the fact that college staff will not be protected by the Bill in the same way as school staff, and yet they will be given exactly the same powers in relation to searching through mobile devices and other electronic devices belonging to their students. It should be remembered that college staff may be dealing with adults.

Does the Minister envisage all teachers in schools having these powers? If not, how would they be trained to ensure that they could handle situations such as those described this morning appropriately? As the clause stands, there is the potential for serious risk to student privacy, and also a risk to staff culpability if they are not well-trained or inadvertently view certain images. The amendment would minimise these risks, and I look forward to hearing the Minister’s response.

Dan Rogerson (Liberal Democrat, North Cornwall)

It is a pleasure to serve under you today, Mr Walker—that is the first time I have had an opportunity to say that today. I want to make a brief contribution during the discussion of this amendment as we are not having a stand part debate.

People outside Parliament might have concerns when looking at the sort of powers we are discussing, particularly those that try to bring legislation up to date with regard to electronic devices. Many young people have access to such devices throughout the school day, though whether or not everyone thinks that is a great thing, particularly for much younger students, is another issue.

When I first heard of this aspect of the Bill I was concerned that teachers would, for example, be given the right to access data on a mobile phone, which could include photographs, videos and all sorts of text files, as the hon. Member for Cardiff West has already said. However, having heard the evidence prior to entering this stage of proceedings, what I found most persuasive was the argument that if staff have reason to suspect that a device contains something untoward and do not have these powers, the only thing that they can do is invite the police to look at it.

If a young person has a compromising photograph of another student that they should not have taken—I am not talking about hard-core child pornography, which is a completely different matter—and there is reason to suspect that it might be used for a purpose such as bullying or intimidation, even if that is not the intended purpose, my concern is that the teacher has the power to deal with it without recourse to the police. It is a hugely important issue for that young person’s future career and development—for example, being able to travel to some countries or enter particular forms of public service—if they have a criminal record. That is where there is perhaps scope for this power and that is why I have been persuaded that, if it is properly circumscribed, it could have some benefit.

Kevin Brennan (Labour, Cardiff West)

Is the hon. Gentleman saying that if a teacher suspects that a criminal offence may have been committed by a pupil they should not report it to the police?

Dan Rogerson (Liberal Democrat, North Cornwall)

No. I am no legal expert and I am certainly not a policeman, who would have all the various offences at his fingertips. However, there are probably circumstances that could be managed in the school setting, but if the police became involved it might lead, for example, to a caution for intimidation or whatever.

Kevin Brennan (Labour, Cardiff West)

But of course a caution is an admission of guilt by an individual of the commission of a criminal offence.

Dan Rogerson (Liberal Democrat, North Cornwall)

That is right and I have seen in my own constituency instances of the police being invited into school in a low-key way, to talk to some young people who might be at risk of committing an offence—let us say—to talk to them about their behaviour and to ensure that their behaviour was dealt with at an early stage, so that there was no repetition. That is a very powerful approach and it is a very useful way of correcting a young person who might be about to go down a path that could lead to something much more serious.

I am concerned that if we do not have some sort of power that allows teachers to deal with these forms of technology that increasingly are being carried around by young people in school, the only option to explore whether an offence has been committed is to involve the police. Again, that is perhaps not the best use of the police’s time and it might also escalate an incident unnecessarily.

When the Minister responds to the debate that has been initiated by the hon. Member for Cardiff West, I hope that he can reassure us about the guidelines and controls that are set out in the legislation. Indeed, they will be set out in his remarks, which will then inform how things are interpreted later. I hope that he can reassure me and hopefully the many people who will have recourse to read his remarks in Hansard that what is intended is a reasonable power that will not have huge implications in terms of data protection, and a sensible precaution to ensure that the police are not involved unnecessarily.

Iain Wright (Labour, Hartlepool)

With regard to students in further education colleges, where there could be a possibility of a search taking place, does the hon. Gentleman think that those students could say, “I don’t want you to look at these specific files on my electronic device”? Is that fair and reasonable in helping to safeguard both the interests of the student and those of the tutor?

Dan Rogerson (Liberal Democrat, North Cornwall)

We are getting into the realms of conjecture that we were in earlier and I accept that during scrutiny of a Bill these are the sorts of issues that are discussed. However, I am looking for the Minister to set out exactly what the intention is behind this measure, to reassure people that it is not a power that will be used lightly and that it will be used only where there is reasonable evidence to lead teachers to believe that they ought to step in. Of course, as the hon. Member for Cardiff West has already said, if we are talking about a serious criminal offence, the police would have to be involved at that stage. There would be no alternative. However, I hope that hon. Members will agree that there are different levels of behaviour and that, if possible, guidance could be given by a member of staff, head teacher or whoever, to prevent things from escalating beyond a certain level.

Kevin Brennan (Labour, Cardiff West)

I accept the hon. Gentleman’s point that there has to be some discretion for teaching staff when dealing with situations within schools. On the point that he made about data protection, does he think that it would be useful if the Minister could tell us what consultations there have been with the Information Commissioner about this issue and whether any views or advice have been received by the Department from the commissioner about the powers in these clauses?

Dan Rogerson (Liberal Democrat, North Cornwall)

The hon. Gentleman raises a reasonable point. I hope that all Departments have regard to those kinds of issues when they look at legislation, guidance, and practice. Additionally, there is the assurance of counsel’s opinion on how such things might be perceived in terms of human rights and so on. I am sure that that is the sort of thing that the Department will have taken advice on before moving on to this stage.

I intended my contribution to be brief, although I always welcome interventions from Opposition Members. Essentially I just wanted to set out my original reservations. I hope that the Minister can reassure us that the power will be reasonably extended to members of staff in education institutions, to prevent certain young people being pushed towards, shall we say, encounters with the police. That would not be the best use of police time, and it would also be unfortunate for those young people.

Mark Durkan (Social Democratic and Labour Party, Foyle)

The amendment is helpful in allowing us to think through exactly the sort of scenarios in which the power might be exercised, and the difficulties and dilemmas that might be created. Unfortunately, the amendment is limited, in the sense that the cover that it would give a member of staff would apply only to the examination of the data or finds, and not to erasure, which my hon. Friend the Member for Cardiff West talked about when he spoke to his amendment. That may be because a separate subsection deals with the issue of erasing material from a device.

There are two separate issues: the examination of material and erasing material, which could lead to contentious considerations, such as whether a member of staff would be right to erase material, and whether the right material would be erased. If there is such a condition as e-dyslexia for IT users, I have it. I can manage to delete a function on my mobile phone, thinking I am coming out of it, which is why I am struggling to get alarm functions working on my BlackBerry and so on. A teacher who is not trained, but who has good cause to ask for, or take hold of, a device might, in trying to go through it, come across something. There can be difficulties, though, if people are unfamiliar with various devices. Not all things that work a particular way on one brand of device work the same way on another. People could get themselves into trouble simply by trying to erase something that it might be correct and justifiable to erase if they end up being accused of deleting far more personal, family-related material. That is something that we need to think about, given that in debating the amendments we are effectively talking about all the implications of the wider clause.

Amendments 14 and 22 relate to clause 2 in respect of schools, and clause 3 in respect of further education institutions. We have to remember that some of the atmospherics and circumstances will be quite different in those two situations. Clause 2 has clear reference to school rules; there is no equivalent reference in clause 3. In many cases, staff in further education institutions might have less clear cover or guidance at a corporate level from their institution. That is why we need to be careful that when we legislate for what staff can do in those situations, we do not assume that they will be covered by clear guidance, well-publicised school rules and so on. Also, as many further education institutions are multi-site, staff may not have guidance, back-up or support immediately available to them. That might be a reason why sometimes people will need to act on their own in a given situation; I accept and realise that.

The seizure of electronic devices, the inspection or examination of them, and the possible erasure of material brings me back to an issue that I touched on the other day. In proposed new subsections (6E) and (6F) in clause 2, and proposed new subsections (6C) and (6D) in clause 3, the Bill provides for someone who has seized a device to examine it, make a decision to return, dispose of or retain it, and erase the material on it. I suppose that the erasure can happen in any situation—whether the device is returned, disposed of or retained.

There is, however, no indication in clauses 2 and 3 of what the purpose of retention might be; is it the need to bring the material to the attention of college authorities, or other relevant authorities, if the need arises? There might be circumstances in which a member of staff believes it best to return a device as soon as possible, with material erased, but wishes to retain a copy of the material as part of a wider investigative effort on the part of the school or other authorities—for example, there might be concern about ongoing sexual harassment in a school or on a particular site.

We must remember that as electronic devices change, they increasingly become display rather than personal information devices, and tablets and iPads are being used to splash posters. I have been told that in the Northern Ireland situation they are being used for quick displays of emblems that are deemed to be proxies for political expression and identity, and can be used provocatively. We can understand how pornographic images might be displayed on such devices, not for the lewd gratification of the holder of the device but as a visual aid to sexual harassment, with images perhaps being composited with photographs. We can understand that there might be circumstances in which teachers and other staff have cause to try to intercept devices, and what they do with the material becomes important.

I would like some clarification on whether the guidance that we are told the Secretary of State will issue on the powers will delineate and differentiate between retention of the device, for whatever purposes, and retention of the material. I am conscious of the shadow Minister’s point about how the law stands on people accessing, viewing and even copying certain material, even if it is done with a view to making it available to school, college or child protection authorities, or to the police. We need to ensure that whatever the extent of powers that we give, and whatever their purposes, certain protections are there. The shadow Minister makes, I think, an honest effort with his amendment to try to ensure that there are protections for staff who will have to deal with many complex issues in myriad circumstances, and we will not be able to predict or pre-empt them all because technology will race way ahead of our imaginations. We therefore need wider thought on the matter, and as the hon. Member for North Cornwall said, it would help if the Minister gave us some indication of how the Government envisage the guidance being sufficient to cover many of those points.

John Hayes (Conservative, South Holland and The Deepings)

I can imagine no greater joy, Mr Walker, than serving under your chairmanship in this distinguished company, scrutinising this important legislation; or there is, at least, no greater joy available in the Committee corridor this afternoon.

This is an important debate on important amendments. Amendment 14 would restrict to senior members of staff the power to erase data from electronic devices. In addition, it would create a protection from any criminal liability that might result from such action. Amendment 22 would provide in the same way for sixth-form and further education colleges. I understand the concerns on these subjects. The amendments raise important issues about the Bill’s purpose, which is to recalibrate—if I can put it that way—the balance of authority in schools, and give rise to perfectly proper consideration of how that should be mitigated in the interests of good practice, privacy, and so on. Those are serious matters that should not be taken lightly.

It was made clear in the evidence sessions—for the sake of brevity, I will not go through this exhaustively—that mobile telephones are increasingly being used in schools to harass and bully teachers. Indeed, the hon. Member for Foyle has just made the point that mobile telephones are not what they were; they can be used to display material of all kinds. The shadow Minister acknowledged the growing significance of cyber-bullying, which is clear from representations that we received and from witnesses such as Sir Michael Wilshaw, who said:

“Cyber-bullying is the curse of many of our schools. Facebook, YouTube and the stuff that sometimes appears on mobile phones are real issues”.––[Official Report, Education Public Bill Committee, 1 March 2011; c. 47, Q98.]

I ought to declare an interest, as the shadow Minister was kind enough to mention his prior membership of the National Union of Teachers: I am a member of the Association of Teachers and Lecturers, which has surveyed on cyber-bullying and found there to be a significant and growing problem in schools.

According to Bullying UK, 14% of young people, or one in seven, have been threatened or harassed via mobile telephones. Each of the 30 sixth-form colleges that responded to a snapshot survey in February 2009 stated that there had been instances of students being subject to cyber-bullying at their institutions in the past 12 months. There is not, therefore, much debate about the significance of cyber-bullying.

Without a specific power to delete inappropriate images, teachers and college staff would be limited simply to delaying any bullying or harassment for which the images might be used until the confiscated device were returned to its owner. The provision is about changing good practice and redefining what is appropriate in the light of the technological changes that have altered the character of bullying. Such changes have altered the nature of the worst examples of what pupils can do to other pupils, students can do to other students, and staff can suffer at the hands of the more malevolent among those they teach.

I want the Committee to ask whose best interests are served if a teacher learns that pupil A has taken an inappropriate picture of pupil B, but is powerless to act when, at a later date, pupil A publishes that image on the internet. Is it in order to prevent such situations? On balance, I believe that is justified, and we should include a provision to that end in the Bill.

A number of issues have been raised to do with the character of the mitigation that I have described. I shall deal with the second part of the amendments, which we can clear up with appropriate rapidity, given our determination to move through the Bill carefully but speedily. The shadow Minister asked whether a teacher who searched a phone under the provision and saw child pornography—which, clearly, is seriously unlawful—would be left open to prosecution. The answer is no. I do not really need to add more, because that is well supported in case law. In those terms, teachers are like other professionals who might encounter material of that sort in the way that we described. I know that this preoccupies the hon. Gentleman—I will not say night or day, or in the still of the night, but it certainly preoccupies him. He is right to ask the question. It is important to say that in our view a teacher would not be subject to prosecution in those circumstances.

Kevin Brennan (Labour, Cardiff West)

I am grateful for the Minister’s assurance on that point, which is very helpful. He said that the point was well established in case law. Would he undertake to write to members of the Committee with the details of that case law, so that we can be assured of the information that backs up his assertion, without having to go into it all here?

John Hayes (Conservative, South Holland and The Deepings)

Yes. I do think it is important that Ministers respond to the proper enquiries of Committee members. I would be happy to do that. Perhaps I can go one step further, and be more generous than he was expecting me to be: I also think that in the guidance that we said we would publish—this is implicit in what we are debating—we need to give an assurance that we are clear about the interface between this change in the law and the other legislation referred to by the hon. Gentleman. We need to be clear about that marriage, because the provisions do, as the hon. Gentleman suggested, have a perceived connection with other pieces of legislation.

I shall try to buttonhole this aspect of the amendments once and for all. In the circumstances that have been hypothetically described, it would be for those bringing proceedings to prove that a teacher had acted unlawfully. The teacher would seek to establish in their defence that they had looked at data in the lawful exercise of the power given to them under the provision. It would be for the court considering all the facts of that case to come to a conclusion. This is a straightforward matter, and the hon. Gentleman will know that a test of reasonableness is well established in law. Indeed, he will have debated many Bills in this House where that very test of reasonableness has mitigated what might otherwise seem to be a power that could be used inappropriately. I am happy to write on both those subjects, and I think that will clarify them.

Kevin Brennan (Labour, Cardiff West)

I am grateful to the Minister for agreeing to write. Of course, the reasonableness test is well established. The difficulty—I think Members on both sides of the House sometimes feel this—is that what Members of this House regard as reasonable is not always viewed in the same way by a High Court judge, much to our frustration as law makers. Will the Minister also—he may have been coming on to this—refer back to the intervention I made on the hon. Member for North Cornwall about what consultation and discussion there has been with the Information Commissioner?

John Hayes (Conservative, South Holland and The Deepings)

Yes, I will. In doing so, I draw the attention of hon. Members to the memorandum that the Government submitted to the Joint Committee on Human Rights, in which we set out how the provisions are compatible with rights under that convention. I think that would be a helpful element in the discussion.

One effect of the amendment would be to restrict to senior members of staff the power to act in the way that I think we all agree will sometimes be necessary, given that circumstances have changed. The law already requires the head teacher or college principal to authorise members of staff before they conduct a search under the powers. The issue raised in the exchange that we enjoyed about whether we are talking about all staff, some staff, or one member of staff, is dealt with in the Bill, in that the person exercising the power would be authorised to do so.

Nothing in the provisions would prevent a head teacher from authorising only senior staff members if they thought it right to do so. There was some discussion of that in the evidence sessions—the hon. Gentleman will no doubt point it out if I do not anticipate his possible intervention—but in the end, the decision lies with head teachers and principals, and we should not prevent them from authorising other staff if they judge it necessary and appropriate to do so. They are, in the end, in a better position to take that decision than we in the Committee Room can be.

In a sense, the issue lies at the heart of our considerations. I will use this opportunity to make the broader point that, as Disraeli said, duty cannot exist without faith. Our duty, based on faith in professionals and school and college leaders, is to trust them to exercise their duties in a way that passes the test of reasonableness that I described a few moments ago.

Pat Glass (Labour, North West Durham)

The point has been made a couple of times that this is a philosophical step on the Government’s part and that it is about giving powers and trusting head teachers, but I am afraid that the Government cannot have it both ways. The recent White Paper said clearly, “We will give powers to head teachers. We won’t tell them what to teach.” The very next line said, “You will teach reading by teaching phonics.” Surely it is for the teacher in the classroom to decide whether the child learns best with look and see or with phonics. Yes, try phonics, but the Government cannot say that they will give powers to teachers and at the same time tell them how to teach.

John Hayes (Conservative, South Holland and The Deepings)

You are in charge, Mr Walker, and it would be wrong of me to be encouraged down a tributary—

Charles Walker (Conservative, Broxbourne)

I do not want you to stray too far, Mr Hayes.

Mr Hayes —on the subject of synthetic phonics, on which the Minister of State, Department for Education, my hon. Friend the Member for Bognor Regis and Littlehampton is altogether more expert than I am. We have debated that issue.

Begging your indulgence, Mr Walker, I should have said at the outset what an immense pleasure it is to be back in harness with my hon. Friend, on this side of the Committee Room this time, after so many Bills together. It is also a great pleasure to face the hon. Member for Cardiff West, an old sparring partner, and my former neighbour and friend, the hon. Member for Hartlepool.

Moving on, I will not be encouraged to speak about how people learn to read and write, any more than—

Mark Hendrick (Labour, Preston)

What about powers?

John Hayes (Conservative, South Holland and The Deepings)

That is a sedentary intervention. Does the hon. Gentleman want to make a formal intervention?

Charles Walker (Conservative, Broxbourne)

It is up to the Minister whether he wishes to give way.

John Hayes (Conservative, South Holland and The Deepings)

I do not want to get into the habit, Mr Walker, as it will become contagious. I suppose all habits are contagious, come to think about it, but there we are.

Before I deal with one or two particular points raised by the hon. Member for North Cornwall and others, another issue in the amendments that has come to the Committee’s attention is the training of staff. Decisions on the training of staff must be made by the head teacher and/or principal, taking into account the school’s circumstances and the character of the management team and the entire staff. The guidance that we offer will deal clearly—it is implicit in the part of the Bill that we are discussing—with issues of reason and law, but ultimately, the discretion of a head teacher or principal to deal with such matters seems central. I do not want to exaggerate the differences between people in the Committee, but that might be a telling difference between our perspectives.

Pat Glass (Labour, North West Durham)

When I talked about training yesterday I was clear that there were two issues. One is about giving powers around search and restraint to teachers without training, which is very dangerous. I would expect any teacher expected to search or restrain a pupil would have adequate training. The second is about the cost of that training. It is incredibly costly, ongoing and annual. I am interested to know whether any additional funding will be going into schools to cover those costs.

John Hayes (Conservative, South Holland and The Deepings)

I did wonder whether such a view might emerge in Committee. I took a look at the guidance on search powers issued by the previous Government. They are rather different powers but, none the less, are an acknowledgment of the need to provide teachers with appropriate authority to take action in the case of what could be very serious circumstances in schools. That guidance made it clear that

“school staff, especially senior managers, are highly skilled and experienced in managing the behaviour of young people in their charge. This includes the ability to resolve difficult confrontations.”

The previous Government were clear that in dealing with matters involving weapons much trust has to be placed in those who manage, as a school teacher, our children and adults. That trust is shared by this Government. We do trust people to make the right judgments.

The hon. Member for North West Durham is right, of course, that it is almost inconceivable that a good head, a good manager, in authorising staff—which is part of this—would not expect them to be equipped with the necessary skills to do the job. I take that as symptomatic of appropriate management, and one would not disagree with that. In the end, these are matters of discretion.

Mark Hendrick (Labour, Preston)

The Minister rightly referred to the fact that the previous Government gave a great deal of trust to teachers in dealing with search powers under previous legislation, of which teachers were required to be cognisant.

The powers we are talking about go considerably further, in that teachers would be allowed to search pupils. There will be issues around contact with the pupil, clothing, and what is allowed to be searched. The trust issue was meant to relate to training perhaps not being necessary in the past. However, the issue around costs would have been dealt with by the previous Government, because obviously our budgets, as the Government always say, were considerably more generous in spending on education and other areas. In the current climate we are looking at cuts.

Charles Walker (Conservative, Broxbourne)

Order. We are straying outside the terms of the debate.

John Hayes (Conservative, South Holland and The Deepings)

I am glad you said that, Mr Walker, because it prevents me from so doing. I want to deal with the nature of data.

Mark Hendrick (Labour, Preston)

On a point of order, Mr. Walker. It is not only my question that the Minister is now refusing to answer. The Minister totally disregarded the question about powers for teachers and went on about other stuff.

Charles Walker (Conservative, Broxbourne)

Order. That is not a relevant point of order. I have made a ruling and we are moving ahead.

John Hayes (Conservative, South Holland and The Deepings)

Of course, I am guided by you in these matters, Mr Walker. At the risk of being on the wrong side of you at this early juncture, I would simply ask the hon. Member for Preston to do a bit of research on whether the previous Government provided money for training in those circumstances.

I come to the data stored on an electronic device and their retention. That important matter was raised in earlier discussions, and I want to clarify our position. If a school keeps an electronic device, it will become the data controller of the data on the device and must deal with the information in compliance with the data protection principles under the Data Protection Act 1998. I do not have a copy of the 1998 Act with me, but, from memory, I believe that it defines eight principles regarding the character of data protection. If it is helpful to Committee members, I am more than happy to make available the relevant information, so that they can be assured about the relationship between those principles and what we are discussing today.

There is clarity about the purpose, which is the matter raised by my hon. Friend the Member for North Cornwall. The purpose is to give sufficient power, with a test of good reason, to teachers so that they can act in a way appropriate to deal with a significant and growing problem, the shape of which has changed dramatically as technology has changed, and the use of technology, both for good and malevolent purposes, has changed with it. The appropriateness of the power is clearly set down in the Bill, which says that there has to be “good reason” to seize an item and examine any data. In the case of retaining or disposing of data, again, there must be “good reason” to do so. Further than that, the person concerned—the teacher—

“must have regard to any guidance issued…by the Secretary of State.”

That guidance will become available shortly and, as I described, will set out some of the appropriate circumstances.

I hope that, having dealt with that aspect of the amendment, and given a firm assurance about prosecution, which I agreed to write to the Committee about—

Mark Durkan (Social Democratic and Labour Party, Foyle)

Will the Minister address an additional point? What happens if a teacher or member of staff in an FE institution takes a device and the student makes the point that it is not theirs? In the case of a school pupil, it might belong to their parents and they have the use of it, or, in the case of somebody who is in college part-time, the device might belong to their employer. A device taken from a student might have material on it that belonged to their parent, and the parent might mount a Max Mosley-style challenge to the invasion of their privacy. Where would teachers be then? Are not some of the points the shadow Minister raised worth further consideration?

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman makes a good point. He did not make this point, but forgive me if I extend his argument: it might be that students were using a device that the school owns, in the case of a computer. The powers the teacher would enjoy in those circumstances would be the same. Imagine someone using a computer to exchange information of an inappropriate kind or send it to other pupils. The teacher would need to act in the same way and with the same tests I described to deal with it. The ownership of the device in those circumstances would not be the salient point; it would be the behaviour of the pupil in using the device for a purpose that the teacher identified as inappropriate.

Mark Durkan (Social Democratic and Labour Party, Foyle)

I take the Minister’s point, but it does not answer the question, it sidesteps it. The clause is about devices that are taken from pupils and then either retained, returned or disposed of. It does not deal with school property.

John Hayes (Conservative, South Holland and The Deepings)

But the point is that because it includes retention, return or disposal, in the case of a device that did not belong to the pupil but to another party—it might be the school itself—clearly it would not be returned to the individual. It is not really a question of ownership but of use. However, given the point that the hon. Gentleman made about it possibly being someone else’s phone, I am more than happy to look at that again on the basis of what he has just described. Perhaps I can come back with further clarification.

Kevin Brennan (Labour, Cardiff West)

I am grateful to the Minister. The hon. Member for Foyle has raised an interesting point and it would be helpful if the Minister could deal with it now or later when he receives inspiration. It is quite common for schools to allow students to have mobile phones. It is also common for schools to ban them. Some schools think that they have safety benefits and are good for keeping in touch with parents. As the hon. Member for Foyle said, a mobile phone may have been borrowed from a parent. If such a phone were seized under the powers, would the teacher have an absolute protection from any legal action by parents in relation to material that may be contained on that phone?

John Hayes (Conservative, South Holland and The Deepings)

That is a good point. For the sake of brevity, I will write to the Committee about that important point, because it requires consideration and clarification. Clearly, issues of whose device it was and who was using it would be taken into account by the authorised person in making a judgment about the actions to take. I take that as read. But there is an important point about the relationship between use and ownership that requires clarification.

Even given my immense generosity, my determination not to become excessively loquacious and the lucidity of my argument, I know that the hon. Gentleman who tabled the amendment wants to speak.

Kevin Brennan (Labour, Cardiff West)

The matter of the Minister’s generosity is for others to decide rather than him, but I have always found him to be an extremely generous person. I cannot speak for all members of the Committee, but no doubt they will give their own views on that subject as we progress.

On amendments 14 and 22 and the Minister’s response, our concern is that we are not sure exactly how the measure is going to work, because we do not know the full extent of the guidance or regulations, or whatever we are going to have. It would be very useful to have the guidance on what can be deleted in front of us. The draft regulations give extremely broad, permissive powers, but what the Minister has just said means that we are being asked to take a leap of faith. He said that duty cannot exist without faith, and asked us to have faith in head teachers. I promise to show faith in him as a Minister in exactly the same proportion that he showed it to me when I was a Minister in the previous Government.

Disraeli also said that a majority is the best repartee, and I cannot win a vote if I press my amendments to a Division. However, it is a leap of faith. We simply do not have the full picture of what the Government intend. Perhaps we should be permitted to trawl through the Minister’s BlackBerry to look at all the advice notes from his officials about the legal advice. We could see whether counsel has indeed said that all this is fine and that officials are unanimous in their view that what the Government are attempting is sound, but I am sure that we would not be allowed to do that. I think that that is probably enough product placement for one debate, as we have already mentioned BlackBerrys, iPods, iPads and the rest.

We have had a good debate. As the hon. Members for Stevenage and for Foyle have pointed out, the amendment is a probing amendment and it contains flaws that we would not actually want to put in the Bill. Given that there is not going to be a clause stand part debate, we may want to return to the issue on Report. We need more detail from the Government and reassurances about how the measures will work. Perhaps the Government will have tabled some amendments by Report stage. On that basis and with that proviso, I beg to ask leave to withdraw the amendment.

Clause 3

Iain Wright (Labour, Hartlepool)

I beg to move amendment 19, in clause 3, page 6, line 19, at beginning insert ‘Subject to subsection (6),’.

Charles Walker (Conservative, Broxbourne)

With this it will be convenient to discuss the following:

Amendment 23, in clause 3, page 6, line 27, at end insert—

Amendment 21, in clause 3, page 6, line 28, at end insert—

Amendment 26, in clause 3, page 6, line 44, leave out from beginning to end of line 9 on page 7.

Amendment 25, in clause 3, page 7, line 9, at end insert—

Amendment 20, in clause 3, page 8, line 11, at end insert—

Mr Wright rose—

Iain Wright (Labour, Hartlepool)

It is a pleasure to serve under your chairmanship, Mr Walker. I am shocked, surprised and a little embarrassed by the welcome I have received—I have never had that before; certainly not from my own side.

I do not intend to detain the Committee too long on this group of amendments. The purpose of clause 3 is essentially to level the playing field between schools and colleges on discipline and the power of staff at further education institutions to search students. Consideration of clause 2 probed and scrutinised many of the same principles with respect to schools that we are now considering with regard to further education colleges. I acknowledge that, during the evidence-gathering session last week, witnesses, when questioned on this aspect of the Bill, welcomed the clause. Sue Whitham from the Sixth Form Colleges’ Forum said that

“we would want the same powers that the Bill gives to schools, because we are dealing in the main with 16 to 18-year-olds. On how those powers are used, we would expect guidance, but we believe that the same powers should be available to senior management in sixth-form colleges.”

Frank McLoughlin, an esteemed and respected principal of a further education college in London, agreed with that sentiment, stating:

“I think the same powers should be there as are there for schools for young people under 19.”

Having said that, Mr McLoughlin questioned whether he would use the power in his college. He told us:

“I have 4,200 young people in my college, but I cannot think of more than a handful of occasions in the past 10 years that I have been the principal when we would have wanted to use those powers.”

He concluded by stating,

“it is about how you run the place. I cannot see us using the powers.”––[Official Report, Education Public Bill Committee, 3 March 2011; c. 106, Q200-201.]

So we have this curious situation where leading practitioners in the FE sector state that they welcome the level playing field between schools and colleges and they welcome the possibility of having such powers on the statute book, but they could not envisage any circumstances in which they would use the power. Indeed, they would see the exercise of this power as a failure of leadership on their part. It appears that this power would be used very sparingly and in very rare circumstances.

Graham Stuart (Conservative, Beverley and Holderness)

I am grateful to the shadow Minister, whose rising to his feet led to such common acclamation across the Committee, for giving way. I enjoyed the generosity of that tribute to him as well as his discomfort in the receipt of it. He has just said that a witness last week told us that he could only recall a number of times in recent years when he would have used the power. The hon. Gentleman also said that the witness went on to say that he could not imagine any situation in which he would use it. My understanding was that the witness said that he could see situations in which he would use it, from his past experience, but they would not be very frequent. For clarity’s sake, the hon. Gentleman might want to put that right.

Iain Wright (Labour, Hartlepool)

I am grateful to the Chair of the Education Committee for exposing the inconsistency of my approach but, as he is well aware, the purpose of this amendment is to probe, to question, to scrutinise, to determine and to identify—as much as we can in Committee—the circumstances in which the Minister thinks that this power could and would be used. The hon. Gentleman, who has not been in this place very long but is already a formidable parliamentarian, knows that this House periodically produces legislation that is to be used in rare, exceptional or emergency cases. The purpose of my amendment is to probe and to determine the circumstances in which this power would be used.

In the debate on clause 2, we asked under what circumstances such a power would be used, and that is the question that I would like the Minister to answer. Where is the evidence that such a power is needed? Do not the existing provisions under the 1992 Act, amended by subsequent legislation, do what is really needed—and what we all want—which is to provide an orderly and safe learning environment for further education colleges? Can the Minister see any specific distinction between schools and further education colleges when it comes to the use of the power in clauses 2 and 3?

The Chair of the Education Committee intervened earlier, and I hope that he will intervene again or perhaps make a little speech of his own, because I was very interested in his Committee’s report on behaviour and discipline. The report suggested that there was little evidence that such additional powers are needed, but I want to probe the hon. Gentleman on whether he focused exclusively on schools, not further education colleges. The report stated:

“Data on behaviour currently collected by the Department does not fully represent the nature of behaviour in schools—good or bad—and the impact of that behaviour upon staff, pupils, parents and carers. We have been unable, therefore, to come to any evidence-based or objective judgment on either the state of behaviour in schools today or whether there has been an improvement over time, as some people believe.”

As I said, I would be interested in the views of the Chair of the Education Committee and whether, in producing that excellent report, the Committee considered further education colleges in any way.

Graham Stuart (Conservative, Beverley and Holderness)

The shadow Minister is being as fluent and as generous as he normally is. I would never seek to mock him, although I would sometimes tease him. In answer to his question, I would nudge him to look at the title of the report, which is “Behaviour and Discipline in Schools”. I would have hoped that the Select Committee would have changed the title if it had reflected a wider remit.

Iain Wright (Labour, Hartlepool)

I shall take what the hon. Gentleman said in the spirit in which it was intended. As for my being as fluent as usual, I did not think that I was as bad as that at the moment—I thought that I was slightly above average.

As for the definition of schools, did the hon. Gentleman’s Committee examine the 11 to 18 education institutions? I know that he is interested in the post-16 provision of education and the wider point about young people. I know that the Select Committee is investigating young people at the moment.

Graham Stuart (Conservative, Beverley and Holderness)

I shall be more constructive on this occasion. We only looked at schools, not institutions of further education on the specific subject of discipline, so other than the evidence heard by this Committee, neither I nor the hon. Member for North West Durham, who is also a member of the Select Committee, heard evidence specifically from the FE sector.

Iain Wright (Labour, Hartlepool)

I thank the Chair of the Select Committee for his clarification.

I come back to the evidence that the Government have seen and whether clause 3 is needed, which is the purpose behind amendments 19 and 20. They would add subsection (6) to proposed new section 85AD under clause 3 and require the Secretary of State, before he exercised the power under clause 3 to

“lay before Parliament a statement agreed with Her Majesty’s Chief Inspector…on the evidence that further education staff need the additional powers available in this section.”

When the Minister responds, I would be grateful if he would outline the circumstances in which he envisages that the powers would be used and say where the powers are lacking under current legislation.

The Government state that one of the virtues of the clause is to level the playing field between schools and colleges. I welcome that, given that more and more children are now being taught in FE colleges. It is also worth pointing out that there are differences. Post-16 education is not compulsory, at least not at the moment. In many respects, young people are not there through compulsion, but because they understand the value of a good education that will allow them to achieve their ambitions. In that context, it is to be hoped that there would be less disruptive behaviour through, say, resentment at having to be at college.

The same is true of the Committee. We have had remarkably little bother so far, largely because of your excellent chairing skills, Mr Walker, but also because we all want to be here. The big difference is that, in the FE sector, adults are being taught in a way that they are not taught in schools. It is not clear from the way that the Bill is currently drafted whether the provisions on discipline and search will apply to people who are more than 18 years old.

Amendment 23 probes the Government’s intentions as to whether there is an upper limit to the age of a pupil that would be subject to searches under the powers in the Bill. While we welcome the equalisation of policy between schools and FE institutions in this regard, the fact that the latter cater for adults as well as young people means that there is a need for absolute clarity in this provision. The Bill extends powers to search in order to maintain discipline, and we assume that the Government intended these powers to apply only to under-18s. Can the Minister confirm that?

Let me give a specific example. New subsection (2A)(a) states that “alcohol or its container” could be taken. Does the Minister envisage a scenario in which an 18-year-old has bought alcohol legally, put it in his bag and taken it to college with the purposes of drinking it off the premises later in the day—at a party or whatever—but then has had his bag searched and the alcohol taken from him, under the terms of this clause? Is that the Minister’s intention? The amendment seeks to clarify the Government’s intentions. It would be useful if the Minister could put on the record whether the legislation includes adults aged 18 or over, as well as children, who are defined in law as those aged 17 and under.

Amendment 21 seeks to ensure that staff conducting the search are trained to maintain the student’s dignity and right to privacy, and in methods that are appropriate for students with special educational needs and disabilities. Those matters were touched on at length during the debate on clause 2, and in the group of amendments that we have just discussed. The right to privacy is an important consideration.

I do not wish to return to matters discussed earlier—I am sure you would rule me out of order if I did, Mr Walker—but I want to probe the Minister on two specific, hypothetical questions. What would happen if a student aged over 16 and in a relationship—even a marriage or civil partnership—had intimate pictures of their partner on their electronic device? Are they allowed to say to the tutor, “On the grounds of privacy, I don’t want you to search that element of my electronic device.”?

Similarly, a 17-year-old at college may be a parent. They may have pictures on their electronic device relating to their children in the bath—innocent, innocuous family fun and purely for the purposes of the family. If the electronic device is searched, can he or she say to the tutor involved, “I don’t want those pictures looked at. They are extremely private family moments, and they have nothing to do with this issue.”? It would be useful if the Minister could confirm that.

At the moment, new subsection (6C) in clause 3(4) states:

“The person who seized the item may examine any data or files on the device, if the person thinks there is a good reason to do so.”

I would question whether that was appropriate for a 17-year-old. As we discussed earlier, does the Minister believe that the principal of the college should be present in all cases? Does the student have a right of veto over which files on a mobile device are looked at?

Amendment 25 seeks to define key terms used in the Bill. The clause gives staff in further education powers in relation to these terms, but does not currently define them. It would sensible for the Secretary of State to issue guidance on the definition of the terms contained within the clause. Let me give the Minister two examples. The first term that needs defining is “serious harm.” Section 224(3) of the Criminal Justice Act 2003 defines “serious harm” as

“death or serious personal injury, whether physical or psychological”.

Is that the legal definition that the Minister is working to? If the member of staff is to make the decision that the conditions are satisfied to allow him or her to dispense with the requirement that the search must be carried out by a person of the same sex as the pupil, or in the presence of a member of staff of the same sex, it is vital that “serious harm” is properly defined in the Bill or at least in guidance.

Similarly, code A under the Police and Criminal Evidence Act 1984 sets out that:

“Reasonable grounds for suspicion depend on the circumstances in each case. There must be an objective basis for that suspicion based on facts, information, and/or intelligence which are relevant to the likelihood of finding an article of a certain kind”—

I do not think anyone can disagree with that. However, the code continues:

“Reasonable suspicion may also exist without specific information or intelligence and on the basis of the behaviour of a person.”

On that basis, and according to that definition on the statute book, will the Minister tell us what reasonable grounds for suspicion will be under the clause?

As the Minister is aware, clause 3 dispenses with the requirement that any search must be carried out by a person of the same sex as the student, in the presence of a member of staff of the same sex as the student, if the staff member believes there is a risk of serious harm. Many stakeholders and members of the Committee have expressed concern about searching schoolchildren. I suggest that there is equal if not more concern about the searching young adults. For example, how appropriate is it for a male member of staff to search a 17-year-old woman? To safeguard students, and to protect staff, amendment 26 would therefore reinstate the requirement for a witness to be present.

My hon. Friend the Member for Cardiff West said this morning that the provisions regarding discipline and searching pupils in clause 2 are under-baked. The same argument can be used for clause 3. We tabled the amendments to probe the Government’s thinking and to allow the Minister to put more meat on the bones of the Bill. I hope that he will also take on board the need to safeguard the interests of student and tutor.

John Hayes (Conservative, South Holland and The Deepings)

We have debated some of the broad points to which the amendments refer. I do not intend to be repetitive—you would not allow me to be so, Mr Walker—and I do not want to delay the Committee unduly, as the hon. Member for Hartlepool said. However, the amendments draw our attention to specific matters that require proper scrutiny. I will deal with a couple of things promptly, so that we can then move on to the elements that the hon. Gentleman described as requiring more careful consideration.

The existing law does not allow a member of staff to search or seize alcohol if the student is aged 18 or over. We are not changing that in the Bill. I wanted to make that perfectly clear because the hon. Gentleman cited the example of alcohol. Similarly, on the issue of familial relationships with a married couple holding images of one another, I think there would be no likelihood of harm resulting from that. However, one would not want to make a blanket judgment, and there would have to be a test of reasonableness. People can be married but not necessarily on good terms, and marriage would not be a prerequisite for any assumption—[Interruption.] For the record, my wife is a charming woman with whom I am deeply in love.

The hon. Member for Hartlepool raised the use of the powers at the outset of his remarks and quoted Frank McLoughlin from the evidence sessions. The hon. Gentleman was right that Frank McLoughlin expected the powers to be used rarely and said that he could not imagine circumstances in which he would do so. However, he prefixed that by agreeing with Sue Whitham who had said:

“This is from the sixth-form college perspective and not the GFE perspective. For sixth-form colleges, we would want the same powers that the Bill gives to schools”.

Frank McLoughlin acknowledged that and said:

“I agree with that. I think the same powers should be there as are there for schools”.––[Official Report, Education Public Bill Committee, 3 March 2011; c. 106, Q200.]

To be absolutely clear, Mr McLoughlin, like Sue Whitham, made it plain that he thought we were right. He went on to say that in his college, which is extremely well run—as the hon. Member for Hartlepool said, Frank McLoughlin is a distinguished principal—he could not envisage circumstances in which the powers would be used.

Iain Wright (Labour, Hartlepool)

I do not think that the Minister is aware that I have quoted that passage from the oral evidence session—he might have been resting at that point. May I ask a similar question to the one that my hon. Friend the Member for Cardiff West asked about clause 2: has there been any lobbying from the FE sector—the post-16 provider—to argue that the powers are necessary?

John Hayes (Conservative, South Holland and The Deepings)

I am in regular contact with the FE sector, as the hon. Gentleman would expect. I was in a college yesterday, and I speak to the representatives of all college organisations regularly—they might say with alarming regularity.

It is certainly true that the college sector believes that there should be some equivalence in the powers, largely because there is substantial evidence that colleges require appropriate authority to deal with discipline.

Kevin Brennan rose—

John Hayes (Conservative, South Holland and The Deepings)

I shall give way to the hon. Gentleman in a second. However, it would be wrong to assume that discipline problems pertain only to schools, although I know that he does not assume that.

Kevin Brennan (Labour, Cardiff West)

I know the Minister wants to develop that point, but he talked about equivalence. As no school rules apply to FE colleges, am I right that an electronic device would have to be being used to commit an offence, or to cause personal injury, if staff were to be able to exercise the powers? In that sense, there is no equivalence.

John Hayes (Conservative, South Holland and The Deepings)

To give the hon. Gentleman an absolutely factual answer, the member of staff would have to reasonably suspect that the article

“has been, or is likely to be, used…to commit an offence, or…to cause personal injury to, or damage to the property of, any person”.

There has to be the expectation or the discovery of that kind of action. In that sense, the hon. Gentleman is correct that colleges are different, given the nature of school rules.

Kevin Brennan (Labour, Cardiff West)

That is an interesting point. It would be worth while if the Minister would explain why there is no desire to create such equivalence in law, because we are left with a situation in which a 17 or 18-year-old pupil in a school finds that their mobile device is more liable to search under law than is the case for a 17 or 18-year-old in an FE college. Two identical young people in identical circumstances might therefore be in very different legal positions with regard to their mobile devices.

John Hayes (Conservative, South Holland and The Deepings)

Yes. I looked at that closely in anticipation of the Committee, because the hon. Gentleman is correct that the balance between creating a degree of consistency throughout institutions and recognising their different character presents a challenge to the Government, as it did to the previous Government. I took the trouble to look back through almost everything said on that subject by the previous Government’s Secretaries of State. Several announcements were made under the previous Government and we have already referred to the additional search and screening powers that were given. Pervading those considerations over time is the very tension that the hon. Gentleman has drawn out about how one deals with colleges and schools, given that colleges are attended by many 16 to 18-year-olds as well as adults.

To pick up the point made by the hon. Members for Cardiff West and for Hartlepool, the colleges say that they want equivalence in the sense that they want the authority to use search powers when that is appropriate. However, they are mindful that their different circumstances might change the application of those powers in precisely the way we were beginning to tease out. That is why—the hon. Member for Hartlepool made this point perfectly reasonably—Frank McLoughlin says he thinks that they should have the same powers, although he could not imagine a circumstance in which he would use them. There would need to be sufficient grounds for concern about the changing nature of intimidation or bullying, for example, which do take place in colleges, to feel that there has to be an appropriate response in line with schools.

Mark Hendrick (Labour, Preston)

As someone who taught in an FE college for four years before being elected to another place across the water, if I may call it that, the circumstances in which FE teachers find themselves are obviously very different because of the age group. Although some of the teaching unions and professionals who gave evidence to the Committee may want equivalence for reasons of consistency, the practical considerations of handling 16, 17 or 18-year-olds, or adults, when using the restraint or search powers, for example, would make things very difficult.

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman sets out well the nub of the tension that I am describing. Schools have broader powers that allow staff to search for prohibited items under the school rules. There is a strong argument that there is scope within the behavioural contracts of colleges to set out rules and expectations of what students can and cannot bring into college. It is reasonable for us to expect colleges to use such contracts in individual situations.

The Bill is pretty clear about the salience of malevolent intent. Clearly, a mobile phone is not of itself a dangerous item. There has to be such intent, does there not? That is why these matters are sensitive, and it is why, as I said when we debated an earlier group of amendments, the extension of powers in this area has to be mitigated by a proper consideration of balance and reasonableness. Our view on that would be no different from that of other members of the Committee.

Kevin Brennan (Labour, Cardiff West)

Will the Minister give way?

John Hayes (Conservative, South Holland and The Deepings)

I need to make progress, but I will give way to the hon. Gentleman because I am generous.

Kevin Brennan (Labour, Cardiff West)

The Minister is generous, and I know he will always give way in Committee, as is the tradition.

I do not want to generate a plethora of correspondence for members of the Committee, but I am interested in the Department’s legal view on the tension between the situations involving a mobile phone in which a 17 or 18-year-old might find themselves at school or FE college, and the potential danger of human rights cases being taken against such institutions. None of us wants to see colleges and schools involved in litigation as a result of something we do here, so would it be possible for the Minister to write to members of the Committee about that?

John Hayes (Conservative, South Holland and The Deepings)

I have an idea, Mr Walker, and if I bounce it off you and the Committee, I hope that it will start to fly. I will try to combine a number of these points in a single letter, because I do not want to confuse the Committee or put my officials under undue pressure. We may be able to deal with a number of overlapping issues on which clarity would help our proper scrutiny. I am more than happy to do that.

Mark Durkan rose—

John Hayes (Conservative, South Holland and The Deepings)

May I make a little progress? I will then be happy to give way to the hon. Gentleman, who is playing a dutiful role in ensuring that this Bill does what it is supposed to do.

The Minister of State, Department for Education, my hon. Friend the Member for Bognor Regis and Littlehampton, spoke during the debate on amendments 10 and 11 about the importance of giving schools powers to ensure that students’ behaviour was more acceptable I do not want to go on at length about the evidence on disruptive behaviour, but just to give a flavour of it, more than half of the 30 sixth-form colleges that responded to a snapshot survey reported an incident in the previous 12 months in which a student or group of students had used an item other than a weapon to cause damage to college property or the personal belongings of a student or staff member, to cause harm to another student or member of staff, or to commit an offence. Examples include the use of screwdrivers to damage goods and equipment.

I have read a newspaper article on a large south-east London college. The hon. Member for Cardiff West said that he had learned his skills in a working-class home in south Wales. I learned my skills in a working-class home in south-east London, which was more Ernie Bevin than Aneurin Bevan, one might argue. I thought of that when I read this piece.

The article states that the object does not have to be a knife. As long as it is sharp, it could be a pen or even a key. A student has been quoted as saying that most people carry such things for their own protection and that it is easy to get that kind of thing into college by sticking it in a waistband, a shoe or a sock. We know that this is a problem in colleges; we should not be starry-eyed about it, and I know that hon. Members are not. Colleges argue that they have to confront some of the problems that are sometimes experienced in schools.

Mark Hendrick (Labour, Preston)

May I add to the less than exhaustive list that the Minister gave? I have come across syringes and needles discarded in a toilet, although I am sure that if some students had been searched, those things would have been found on them. Luckily, they were not shooting up in class, but I am sure that that sort of thing goes on.

John Hayes (Conservative, South Holland and The Deepings)

I am delighted that the hon. Gentleman has made that information available to the Committee because this very serious matter requires a serious response. He knows that the previous Government acknowledged that problem and extended the powers to search for drugs as well as weapons. He makes a powerful point and I do not think that there is much disagreement in party terms about it.

Graham Stuart (Conservative, Beverley and Holderness)

The submission from the Association of Colleges welcomes the extension and it seeks the equivalence that we have talked about. It says that occasionally there are searches and that this measure will help college staff in their day-to-day work. However, it also says that specific guidance is needed so that colleges may support the legislation, so this is an instance of colleges themselves asking for guidance, even though I know that too much guidance may have been issued by the last Government. I also know that my hon. Friend the Minister is a great champion of the FE sector—there is no greater champion of the sector—and that he will therefore want to ensure that, unlike the previous Government, which made only one mention of colleges in its guidance, on page four, he puts colleges at the centre of proper thought and proper guidance.

John Hayes (Conservative, South Holland and The Deepings)

As you know, Mr Walker, the Cinderella sector found its Prince Charming when I became Minister. My hon. Friend brings his point to the attention of the Committee more powerfully than I could have done. His Committee’s report on these matters said:

“We support proposals in the Schools White Paper to extend powers relating to search and to clarify powers of restraint, in the interests of supporting teachers’ authority in managing behaviour.”

Because I have discussed it with him, I know that he shares the view that colleges also need to have these types of powers to tackle the sorts of things that we have begun to exchange views about today.

Perhaps I may add at this point that it is easy to forget that colleges teach a number of students in the 14 to 16 age range. The relationships and collaborations between schools and colleges mean that colleges deal with very young people as well as with people who are considerably older. The survey by the Association of Colleges reports concern about such things as the theft of mobile phones and other criminal activity. Furthermore, college principals have said that they would like to have some of the powers of school principals.

Like staff in schools, college principals and authorised members of college staff already have a statutory power—the one that I mentioned a few moments ago—to search students without their consent, in certain defined circumstances, for knives, weapons, alcohol, controlled drugs and stolen items. Extending powers in colleges in a similar way to as in schools will ensure that authorised college staff have the powers to deal quickly and effectively with problem or extreme behaviour. It will ensure that the rights of students and staff to study and work in safety will be protected, regardless of whether they study and work in a school or college.

Let me just emphasise that point. In dealing with such behaviour, it is easy to focus on the individual concerned in the incident and to understate the broader effect on the college or school community.

Mark Durkan (Social Democratic and Labour Party, Foyle)

It is not so much about extreme behaviour as about possible extremist behaviour, given that the clause deals with further education institutions. In a previous sitting, I gave an example of a further education institution in Northern Ireland that was trying to maintain campus neutrality and resolve contentions involving football displays and so on. Is the Minister content that the clause would cover a situation in which, at a further education institution with a cultural and ethno-religious mix, and maybe a difficult and contentious environment outside, material is displayed using an electronic device, as we said earlier, in a deliberately provocative manner? Would the powers permit staff to act against such material on an electronic device in that situation, taking into account, as he said, the wider good and the wider impact on the college population and environment?

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman makes a useful addition to our considerations. He is right to make it clear that what is described in popular parlance as cyber-bullying is as likely to happen in a college as in a school. We should not assume that it applies only to teenagers and so on; it could happen to others. If such material were of the kind mentioned by the hon. Member for Cardiff West—serious pornographic material, for example—it would be an offence, as it would be outside an educational institution.

Just to clarify the point—it involves another clause, but I hope that you will not mind, Mr Walker—in those circumstances, I think that a teacher would, of course, report the matter to the police. If they suspected a serious criminal incidents—it might be an a priori assumption, but if they none the less recognised the potential for seriousness—I think that they would want to take the matter to the police. Nothing that we are saying in the Bill prohibits that. I think it appropriate that we consider the possibility, as the hon. Gentleman suggests, that devices might be used to engage in unhealthy or unsuitable activities, just as in schools.

Mark Durkan (Social Democratic and Labour Party, Foyle)

Just to clarify, is the Minister saying that he believes that it may be appropriate and relevant under the clause for a member of staff at a further education institution to delete from an electronic device emblematic displays used by, for example, extremist British nationalists or Muslim fundamentalists, or the cartoon published in Denmark that were the subject of an awful lot of controversy, which could be displayed in particular circumstances as a visual aid to racial provocation? Would that be covered? Where would the member of staff be when making such an erasure, given that political controversy would likely follow?

John Hayes (Conservative, South Holland and The Deepings)

The hon. Gentleman is an experienced and shrewd Member of the House. He will know that legislation lays down a series of principles that are then clarified in guidance. Judgments about the detail, as we argued earlier, will be made by principals and head teachers. None the less, it is as clear as crystal that if there is

“an article that the member of staff reasonably suspects has been, or is likely to be, used…to commit an offence, or…to cause personal injury to, or damage to the property of...any person”,

action would clearly be taken. The provisions include incitement to racial hatred, harassment and a range of offences. When we think of offences, we should not simply think of violent offences. A whole range of offences that relate to bullying in a school or college would be included. The hon. Gentleman might argue that they are at the extreme end, but they are related none the less. Whether something was criminal would depend on the character of the material. Certainly, we are attempting to extend the power of those involved to take swift action to deal with the possible effects of such malevolent intention and action.

The other point made by the hon. Member for Hartlepool was about the age of students. I want to explore that a little further for the benefit of the Committee. We are all aware that the age range of students in colleges is far wider than in schools, and we should consider carefully whether that should make a difference to how we frame the powers in the Bill. We have had that debate. As we were saying about the tension between schools and colleges, there is a perfectly reasonable debate to be had about whether a line could be drawn at some point to say that the powers should apply only to people beyond, or below, a certain age.

We concluded, after careful consideration, that we should not create that kind of age barrier for two reasons. First, we believe that if a student is carrying an item that has been used or is likely to be used to commit an offence, it is entirely right that staff should have the same basic power to deal with the situation irrespective of the student’s age. If we agree, for example, that a 17-year-old should be prevented from damaging property with a screwdriver, why not a 20-year-old? Colleges tell us that they face the same problems as schools in the way that I described earlier, so we believe that they should have the same powers to deal with them. In addition, we believe that all students under the age of 18 should be treated equally, regardless of where they study. Their parents should have the assurance that their children receive the same safeguarding in colleges as they enjoy in schools.

Secondly, this is a broad power that we will expect college staff to interpret and apply within their institutions. We do not intend to spell out in detail how it should apply in every situation. Colleges are responsible institutions; they know what is appropriate to their individual environments and are well equipped to judge the seriousness of any circumstance. We are clear that we are providing a broad power for staff to act swiftly when absolutely necessary. Searches will be not be undertaken lightly. Colleges are staffed by highly-qualified and committed professional staff. We trust them to interpret the provisions sensibly, in a way that is appropriate to the age of the students concerned, within their individual institutions and in accordance with their colleges’ regulations and behavioural contracts. We thought about whether a barrier on age or a limit should be set and, for those two reasons, concluded that it should not.

Amendment 21 is linked to amendment 12, which the Committee discussed earlier in relation to the conduct of searches. I understand the concerns behind the proposed amendment. Students’ dignity and entitlement to privacy should be sufficiently protected. Searches must only be carried out with good reason, and those reasons are set out in the proposed legislation.

I also understand the additional issues that arise when carrying out searches on certain pupils with special educational needs or disabilities. I am particularly sensitive to that. For all my political life, including when I was county councillor long before I first came to the House, I have been very interested in special educational needs and disability issues. I asked such questions when we discussed the legislation. Again, the emphasis here must be on the appropriateness and the sensitivity used by senior managers, teachers and lecturers in dealing with those issues in line not only with legislation, but with guidance. When the guidance is issued, we will address some of those matters.

I agree with my hon. Friend the Minister with responsibility for schools that decisions about the training that is offered to members of staff on searching pupils and students without consent are best made by individual schools and colleges. I need to form something of a Hegelian synthesis with the hon. Gentleman, because I felt just a frisson of difference between us earlier, which caused me some pain.

Good heads and principals will want to ensure that their staff are trained. That has been clear in my discussions with principals, and I know that equivalent discussions have been taking place between my hon. Friend the Minister and head teachers. It was clear that the responsibilities that the Bill confers were not taken lightly by the witnesses in the evidence sessions. It would probably not be appropriate to get into a debate here about the funding of that, however. What the hon. Gentleman said has been put on the record, and if I were to respond now I would probably once again be chastised by the Chair. On that note, I had better give way to the hon. Member for Foyle.

Mark Durkan (Social Democratic and Labour Party, Foyle)

In summing up on the clause, the Minister has explained the rationale—as did the hon. Member for Hartlepool, who tabled the amendments—behind achieving equivalence where that was sought. Does the Minister believe that the clause takes enough account of the real differences between a further education setting and a school? Those differences include the age range, the fact that many more people will be part time, possibly sponsored by an employer, and the fact that far less time will be spent in class.

Far more of the time that a student spends at an FE college will be in a less supervised setting and in a more open context than in class. Much of the discussion on the previous clause presumed that we were talking about a teacher in a class setting who was in charge of a class, but that is not going to be the case in FE. The powers of search, for instance, will involve possibly having to stop someone in a situation that is very different from one that might occur in a school classroom.

John Hayes (Conservative, South Holland and The Deepings)

That is a good point, because the hon. Gentleman is right that further education is diverse by nature, and colleges perhaps all the more so. In essence, this is a permissive power, which will be used appropriately. I have made the case about what I described as sensitivity and appropriateness, because principals will have to make judgments about the application of the power that are pertinent to their circumstances.

The hon. Gentleman’s point about the difference between schools and colleges could be made about the difference between different types of college, or different types of school. Some colleges are small and their offer is much more limited. Other colleges are extremely large, with large numbers of part-time students, and they offer a range of provision. The power is permissive, and it has to be applied with sensitivity according to local circumstances.

Iain Wright (Labour, Hartlepool)

The Minister has just mentioned that the power is permissive. Does he anticipate that principals of FE providers might think, “This is a wide-ranging power that might be used a couple of times every couple of years. The training on it, which is vital to safeguard my staff, is expensive, so I am not going to use the power,” and therefore it will lie idle on the statute book? How often does he anticipate the power being used in that context?

John Hayes (Conservative, South Holland and The Deepings)

I have been a school governor all my adult life, and I remain so. As the hon. Gentleman knows, a school or college often trains staff for a responsibility that might be exercised only occasionally. School governors, managers and teachers—the same would apply to the equivalent people in colleges—might be trained to perform a particular function or task, which might be a legislative requirement or a matter of choice by the school, but which is not employed daily, weekly or monthly. We are talking about authorised staff, and not every member of staff will necessarily be so authorised. It would be a targeted competence, supported by appropriate training, which is not out of line—certainly in my experience—with what schools and colleges often do now. It is not exceptional. In the end, such judgments about training will be made locally.

Mark Hendrick (Labour, Preston)

If I may relate back to my own training, I remember going on day release to do a university of Manchester certificate in education, which covered several modules, none of which was related to the subject area that we are discussing. Nevertheless, they were an investment that the college felt it was important to make at the time. Training has some value, but I want to bring it back to the issue of age. A young female teacher dealing with a young female pupil in a primary school is a different scenario from a 19 or 20-year-old part-time student who has come into college from the pub on a Friday afternoon and wants to behave in a way that they see fit, but the teacher does not. Restraining or searching somebody in that situation is a different thing, and it can never be dealt with through training. It needs the discretion and judgment that the Minister has mentioned.

John Hayes (Conservative, South Holland and The Deepings)

I accept that once again helpful intervention from the hon. Gentleman. We have reached synthesis, because the intervention was a helpful illustration of the fact that, because circumstances vary, heads and principals must be allowed to use discretion in how they apply the power. I will go further and say that college principals should not be hampered with over-prescription from central Government about how they should train their own staff to use the provisions. They should have the freedom to take decisions in the light of their particular needs and circumstances. They need the flexibility to ensure that their staff get the training that benefits them the most. Remember that colleges generally employ professional security staff, who will be specifically trained in the conduct of searches. It is usual for them to carry out a search if one is necessary.

On that basis, it may be useful to tell the Committee that a recent survey, carried out by the Association of Colleges, showed that, of the 16 colleges that responded, four had carried out searches of students over the past year, and one had carried out 89 searches during that time. By the way, all the colleges reported instances of cyber-bullying in that period. Security in colleges—the point that the hon. Gentleman referred to—is often a different matter from security in schools. The discretion that we are allowing, in what I described as a permissive power, will facilitate appropriate responses to meet those particular circumstances.

As my hon. Friend the Minister said this morning in relation to schools, when the powers to search for weapons were introduced in the Violent Crime Reduction Act 2006, which we heard about earlier, and when they were extended to include alcohol, illegal drugs and stolen items in the Apprenticeship, Skills, Children and Learning Act 2009—we both served on that Bill Committee, and it seems like yesterday—a training requirement was unnecessary and was regarded as such by the previous Government when that legislation was debated prior to enactment. There is no difference between our perspective on this and theirs.

Amendment 23 would ensure that all students in further education institutions were covered by the new powers to search students without consent, regardless of their age. I dealt with age earlier. As has been mentioned, we agree that the extended powers should apply to all students. That reflects the existing statutory power that enables college principals and authorised members of college staff to search students without their consent for knives or weapons, controlled drugs and stolen items. As I also said earlier, other than for alcohol, which is not illegal if in the possession of someone aged 18 and over, there is no age limit placed on the existing search power.

From memory—this is not a rhetorical device—I believe that that matter was discussed around age when earlier powers were considered and introduced. This, in those terms, may be seen as something of a reprise or a cover version—to rise to the challenge offered by the hon. Member for Hartlepool when he was speaking about his immense, eclectic, renaissance record collection. [Interruption.] I made that assumption because I know he is a man of immense taste and breadth. As drafted, the extended powers cover both over and under-18-year-olds. Any specific reference to over and under-18-year-old students is redundant, and therefore the amendment is unnecessary.

On amendment 25, I understand the hon. Gentleman’s concerns that searches without consent in colleges be conducted properly and with regard for the safeguarding of students. However, as my hon. Friend the Minister responsible for schools mentioned, it is not necessary or desirable to define those terms in guidance. College staff, like school teachers, are intelligent, sensible people who will know exactly what those items mean in an everyday sense. That is important because of what I said earlier about things being used as improvised weapons.

The survey I described mentioned screwdrivers, keys and other things. When something has been sharpened and is clearly being concealed for a purpose, and could be used as a weapon, we have to make the reasonable assumption that teachers and college staff will use their judgment with the mitigating test of reasonableness that I described earlier.

Iain Wright (Labour, Hartlepool)

Will the Minister confirm that the definitions for “serious harm” and “reasonable grounds for suspicion” will be used as per the 2003 and 1984 legislation respectively?

Charles Walker (Conservative, Broxbourne)

Order. Mr Hayes, for the sake of clarity, is this going to be one of your short speeches, or one of your long speeches?

John Hayes (Conservative, South Holland and The Deepings)

As a result of your question, Mr Walker, my speech has become suddenly shorter. I am moving to an exciting conclusion, but I want to deal briefly with the hon. Gentleman’s question. The answer is no, which is about as short as it gets.

As my hon. Friend the Minister rightly pointed out, most of the terms listed have been included since 2007, when the power for schools and colleges to search pupils without consent for knives and weapons was introduced through the 2006 Act. That Act enabled colleges to search students on reasonable suspicion that they were carrying a weapon, and it gave them the power to use force to conduct a search.

I agree with my hon. Friend the Minister that terms such as “search”, “reasonable suspicion” and “force” were well understood then, just as they are well understood now. Colleges are responsible and professional institutions, and we believe that they will exercise these powers with the diligence, responsibility and wisdom that I have found is the norm when I have visited colleges up and down the country since becoming a Minister.

I move rapidly to my conclusion. I do not want to miss this point, because it is important illustratively in dealing with some of the issues raised—perfectly properly—by other hon. Members. A practical example of where the provision would be helpful is when a member of staff leads a field trip. Suppose they learn that one of the students, known to have a connection with the local gang, is carrying a small penknife that he believes is necessary for protection as he will be passing through another gang’s area. In that situation, it would not be practical for college staff to restrain the young man until another member of staff, or the police, arrived. It makes more sense that the law allows a member of staff to search that person or a bag he is carrying. My hon. Friend the Minister referred to that in relation to schools.

Two misassumptions—I put it no more strongly than that—have risked permeating our discussion. The first is that this is about only the search of a person, when it might be about something the person is carrying. The second is that there is an inherent difference between what is held on an electronic device, and what might be held on a sheet of paper in a book or in a desk. Those are not fundamental differences in terms of their likely effect. They are differences of method, rather than a difference of intent or effect.

It is not possible for us to predict in every circumstance when it might be necessary for a member of college staff to search a student without a witness, but it is right that they can take immediate action to ensure the safety of all concerned when such circumstances arise. I do not want to go exhaustively through this, because we debated it at length in relation to schools. I would add that the extended powers have been welcomed by the Association of Colleges and the Sixth Form Colleges’ Forum. I believe that there is ample evidence that the powers are necessary and proportionate and, therefore, the amendments are unnecessary. On that basis—I will not on this occasion say, “on the basis of my generosity”, because it is for others to judge that—I invite the hon. Gentleman to withdraw the amendments.

Iain Wright (Labour, Hartlepool)

I will be brief. I thank the Minister—the hon. Gentleman, the Prince Charming—for his remarks. I also thank him for the swift clarity he provided on my point about alcohol and age in the provisions. He spoke for some time and, from interventions rather than my own speech, we teased out some real leaps in the dark. The Minister does not seem to be aware of the circumstances in which powers will be used. Thanks to successful interventions by my hon. Friend the Member for Cardiff West, we teased out the idea that there is a lot of tension in the equivalence between schools and colleges. There could be a position whereby a pupil attending a school facing exactly the same circumstance will be dealt with in a different way legally from someone in a further education college.

It was certainly made clear that guidance is required to provide any light in this darkness. That is not burdensome bureaucracy or red tape; that is something the FE sector is crying out for—to be given guidance to help staff carry out these tasks.

In the interests of brevity and making progress on the Bill, I do not want to test the opinion of the Committee, but I give notice to the Minister that I hope we get comprehensive guidance, and a letter explaining the circumstances in which the power can be used, before Report. I also give notice that I would like to come back on Report to this important matter. There is a leap in the dark. I know the suggestion has been welcomed by the FE sector, but it is crying out for guidance. On that basis, I beg to ask leave to withdraw the amendment.

Clause 4

Kevin Brennan (Labour, Cardiff West)

I beg to move amendment 33, in clause 4, page 8, line 13, at beginning insert ‘Subject to subsection (5),’.

Charles Walker (Conservative, Broxbourne)

With this it will be convenient to discuss amendment 34, in clause 4, page 10, line 7, at end insert—

Kevin Brennan (Labour, Cardiff West)

We now move on to clause 4 about the exclusion of pupils from schools in England. The proposals shows the difference between government and opposition. There is a lot of detail and I do not intend to be as lengthy as the Minister in the previous discussion. That was a bit more “Bohemian Rhapsody” than some of the shorter songs we might have had from him. Nevertheless, it was an important debate and a tour de force of its kind by the Minister.

The clause shows the difference between opposition and government, because when in opposition, Ministers were saying very different things from what they propose here. They said they wanted the head teacher to be the captain of the ship. Whether that was Captain Bligh or another, they wanted the head teacher always to be the captain whose decisions on exclusions could never be gainsaid.

“We campaign in poetry, we govern in prose.”

In this instance, we could perhaps say that the Ministers campaigned in rhetoric and are now trying to govern in reality, because the proposal they have introduced is different from that which I have just described. They are talking about a system in which there is an exclusion panel of sorts, but with different powers from the previous one.

We certainly believe that no child should have their learning disturbed by poor discipline in the classroom, and that exclusion should always be a last resort. When we were in government, teachers were given strong new powers to ensure order and discipline, as has been acknowledged in the Committee, and we had plans to strengthen home-school agreements to make clear the responsibility that families and pupils also have in ensuring good behaviour. We believe that every parent should agree to the school’s behaviour rules, by signing a contract each year, and should face real consequences if they fail to live up to the rules, including the option of a court-imposed parenting order. Parents are a crucial part of the equation, and there is a sense that they have been forgotten in parts of the Bill.

We were also working to improve alternative provision for excluded pupils, and later in the Bill we will come to some of the Government’s proposals on that. We also believed that more needed to be done to tackle bullying in schools, which, as the Minister said, is a significant cause of bad behaviour, in particular by investing in anti-bullying interventions, including those to tackle homophobic bullying. I welcome the personal commitment of the Minister with responsibility for schools on that. I know that he recently visited Schools Out, and having addressed that audience myself—I was the first Minister ever to undertake that visit—I pay tribute to him for taking on that task. It is a positive thing for him to have done. The Government have talked a lot about that issue, but we are yet to see real action.

The clause has the potential to reduce parents’ rights by abolishing both appeals panels and pupils’ ability to be reinstated by an independent body, and replacing them with a review panel that cannot require reinstatement. That is the gist of the clause that we seek to amend here. There is concern from parents and others about safeguards for vulnerable groups, such as children with special educational needs and groups that have disproportionate levels of exclusion. It is not entirely clear how removing a pupil’s chance of being reinstated on appeal will play out legally. That was a concern that we had when in government, and the legal advice that we received was that the problem with doing what the Opposition at the time wanted the Labour Government to do was that it was likely that many of the cases could end up in court.

As we will discuss later, on amendment 35, not many pupils are reinstated in the way sought by the clause. There has occasionally been some exaggeration of the problem, but the size of the headline is not always related to the size of the problem. In combination with clause 6, which repeals the duty on schools to enter into behaviour and attendance partnerships, and which the Committee will debate at a later date, the clause might be seen by some people as a signal to parents and pupils that once a child is excluded they could be written off. Is it the Government’s intention to have greater numbers of young people in alternative provision and, in effect, prevent them from ever returning to a mainstream school setting? I am sure the Minister will want to share with the Committee his thoughts on that accusation, which some have made.

Will the Minister reassure us that the clause, combined with clause 49, which changes the name of short-stay schools back to pupil referral units—an issue mentioned by the hon. Member for Bedford on Tuesday—and clause 51, which enables alternative provision such as pupil referral units to become academies, does not indicate that the Government intend that excluded children will not return to mainstream education? Can he enlighten us on his intentions in this clause?

We have not heard a great deal about what the Government intend to do to offer the kind of support and one-to-one assistance to help prevent bad behaviour before it starts and to bring children back on track once they have been excluded from school. It would be very useful to hear from the Minister on that point. Obviously we will debate the details of these points as we progress through the Bill, but in the meantime it would be helpful if the Minister could set out now in some detail his position on exclusions and on tackling bad behaviour before exclusions become necessary, while ensuring the protection of vulnerable groups.

The clause creates these new exclusion panels, which do not have the power to insist on reinstatement. Could the Minister explain why a head teacher under any circumstances would refuse to carry out the recommendation of a panel after it had recommended reinstatement under his new provisions? Would a panel ever recommend the reinstatement of a pupil because certain issues had not been taken into account or because certain procedures had not been followed? Would it ever be unreasonable to recommend the reinstatement? If the panel would always be reasonable in acting in that way, because it has to consider whether this could be challengeable by judicial review, does the Minister intend to allow head teachers to be unreasonable in refusing to allow a pupil back into the school? If he could square that logical circle for us we would be very grateful.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

It is a delight to be back in the responding seat again, after the interesting deliberations on clause 3. Before I come to some of the points raised by the hon. Member for Cardiff West I want to talk about the amendments because it is difficult to understand what they are driving at. Amendment 34 talks about new powers for school staff in clause 4 but there are no new powers in the clause. It is about the independent review panel. So I should like to take the opportunity to explain why we are removing independent appeal panels and replacing them with independent review panels.

In 2008-09 just under half of all permanent exclusions were for violent or abusive behaviour. The latest figures show that independent appeals panels overruled head teachers on exclusions in a quarter of the cases they heard. In the cases where the head teacher was overruled, one third of the pupils were then returned to the school from which they were excluded. We believe that is unacceptable, notwithstanding the fact that the absolute figure we are talking about is relatively small compared with the overall number of exclusions and the overall number of schools.

The possible reinstatement of an excluded pupil, however rarely that happens, can seriously undermine a head teacher’s authority. That may create a deterrent to other head teachers that could prevent them from excluding a child when it is right and necessary to do so.

Kevin Brennan (Labour, Cardiff West)

I understand that the Minister wants to go on to make the point that he believes in principle that that should not be allowed to happen. Perhaps before the conclusion of his remarks, could he share with us the quantum that he mentioned in relation to the absolute number of cases where the pupil who had been excluded was ultimately reinstated?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I am happy to do so. In 2008-09—the year for which I have figures—640 appeals were lodged. That represents about one tenth of permanent exclusions. Some 590 of those appeals were heard, of which around a quarter—150 appeals—were determined in favour of the parent. Ultimately, 60 of those pupils were reinstated. Those 60 pupils can cause damage in one year to 60 different schools around the country. One pupil returning can hugely undermine authority in a school in that year. I refer the hon. Gentleman—perhaps this will pre-empt the hon. Member for Sheffield, Heeley from intervening—to two of the head teachers who gave evidence.

Meg Munn (Sheffield, Heeley) (Lab/Co-op) indicated dissent.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The hon. Lady shakes her head—I was hoping, but it is not to be. Sir Michael Wilshaw, for example, who is the principal of an outstanding academy in Hackney—I think that all members of the Committee who know the school would pay tribute to him—said:

“Certainly one provision that I welcome, apart from the same-day detention that we already do, is the fact that once the governors have reached the decision to exclude a child—no-one excludes lightly—it should be final. There is nothing worse for a head teacher than for his or her authority to be undermined by an appeal panel that sends back a child.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 56, Q109.]

Sally Coates, the principal of Burlington Danes academy, said:

“I am very pleased that the appeals panels have gone, having had a permanent exclusion overturned. A teacher was attacked with a knife and the child was able to come back to the school. The governors made the right decision, so I am very pleased that the panels have gone.”––[Official Report, Education Public Bill Committee, 1 March 2011; c. 57, Q111.]

Although the numbers are small, the effect that those returns have on the authority of a head teacher is colossal, as the evidence of those two head teachers shows.

Meg Munn (Labour, Sheffield, Heeley)

I was very struck when the Minister said that this is unacceptable—meaning that in every case it is unacceptable. I am sure that we will come to the general philosophical point, but I am puzzled that he knows somehow that it is unacceptable in every case. He seems to assume that every reinstatement is necessarily bad, whereas we will explore the reasons why that might not be so, including perhaps whether the child’s situation was not fully understood. To assume that a panel will always get it right or that somebody else—a review panel—would always get it wrong, seems extraordinary.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

This is about trusting the professional judgment of head teachers. We Government Members do that more than Opposition Members. These are professional people who are running great institutions in our country. They do not permanently exclude their pupils from school lightly. When other people second-guess their decisions, or the fear is that their decisions will be second-guessed, that has a detrimental effect on the power and authority of that head teacher in keeping authority and discipline in the school.

Mark Hendrick (Labour, Preston)

I apologise for not being here at the start of the Minister’s current contribution—I had to nip out briefly. Does he genuinely believe that head teachers will continue to use the same discretion as they do now, knowing that pupils could be reinstated if a panel felt that they were wrongly excluded? Does he make any distinction between a head teacher excluding a pupil because they are a nuisance, and it is convenient to do so knowing that they cannot be reinstated, and a pupil who—as in the case cited—might be a genuine danger to other pupils and has used a knife in the past? To exclude the latter would be perfectly reasonable.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

My view of head teachers is that they do not act in that way.

Mark Hendrick (Labour, Preston)

In the current environment?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

In any environment. They are professional people and know that the decisions they take about whether to exclude a pupil permanently, or for a fixed term, have an important effect on that child’s future. I have not yet met a head teacher who says, “If a child comes into school dressed improperly, I permanently exclude them. If their exam results look like they might damage my league table position, I just exclude a whole class permanently.” I have never come across a teacher who says that, nor have I come across clear evidence that this happens. I do not believe it is happening. It is important to trust head teachers.

There are safeguards with the independent review panel. The hon. Member for Cardiff West opened his remarks by saying how different this policy is from the one we had in opposition. Well, we achieved what we wanted in opposition, which was to avoid automatic reinstatement and the ability of an independent body to overturn the decision of a head teacher. That was the objective. We have now combined that with taking into account head teachers’ concerns over the threat of a judicial review of their decisions, so I think we have the best of both worlds in the decision we eventually reached that is incorporated into clause 4.

Stella Creasy (Labour, Walthamstow)

I take extreme exception to the idea that Opposition Members do not see head teachers as important people. I speak as the daughter of a head teacher, and therefore have extremely high regard for them. I am quite confused by the situation that the Minister is setting out, because if he believes that head teachers would never exclude in a way that was inappropriate or open to challenge and scrutiny—which an independent panel would seek to determine—what is the purpose of retaining the independent panels in the legislation? He cannot have it both ways, with a role for independent safeguards but the view that head teachers are never wrong or inadvertently mistaken.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Nothing is black and white, and of course mistakes might be made, but it is important that parents have some recourse if they believe that their child was wrongly excluded. That is the purpose of the independent review panel, which thereby minimises the chance of judicial review. That is the key point: there is an avenue for parents to go down after they have been through the procedures with the school’s governing body, and so on. They can have their day at the independent review panel and that minimises the risk of judicial review, but ultimately none of that process will undermine the authority of the head teacher, and that is what we are trying to protect.

Stella Creasy (Labour, Walthamstow)

I am sorry, I genuinely do not understand the picture the Minister is envisaging. Surely if he is concerned about the head teacher’s authority, a panel that decides that a head teacher has made the wrong decision and yet cannot reinstate the pupil undermines the head teacher as much as a panel that says it was the appropriate thing to do? I am unsure how the Minister thinks this will avoid a judicial review process if a panel consistently finds that a head teacher is making the wrong decisions. Surely that opens up more avenues for judicial review, not less? It seems to be a confused process.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

It is a review, not a direction, and that is the difference. Authority is not undermined by a panel recommending that the governing body looks again at whether the child should have been reinstated. The authority of the head is undermined by the child that Sally Coates referred to, who having committed a very serious offence then comes back into the school. That is what undermines authority, and it happened on 60 occasions in 2008-09. Therefore, assuming all of those cases were at separate schools, 60 schools have had their authority undermined in one year. That is the problem that we are trying to address with the clause.

Stella Creasy (Labour, Walthamstow)

The Minister has to accept that there is an alternative scenario. In 60 cases, exclusion was the wrong option for the young people. An independent panel identified that as the wrong course of action. He seems to be saying either that, on every incident, the review panel will say that the head teacher had made the right choice, in which case the review panel has no point, or that review panels may say, “This is the wrong choice for this pupil, but we cannot do anything about it.” The young person’s educational choices will be limited as a result, yet they have no recourse to action. The balance does not seem to be right.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

This is about providing an appeals process that can result in serious consequences for the school if it made a capricious decision. The clause provides three options to the panel. It may uphold the decision, recommend that the body reconsiders it or, if it considers that the decision is flawed, quash the decision and direct the governing body to reconsider. Panels may come to one of three conclusions. If it is the latter, and the governing body reconsiders but decides that relations between the teacher, the head teacher and the child have so deteriorated that despite the quashing of the decision, it still does not want the child to be reinstated, the school or academy will face financial penalties. The money will follow the pupil to the alternative school that they go to.

Pat Glass (Labour, North West Durham)

I am trying to explore the thinking behind this. I have met independent appeals panels. They are usually made up of professional people, such as ex-head teachers, not Mrs Miggins off the street. They have worked in schools and know the situations. Can the Minister think of any other incident where an independent body of usually similar colleagues and professionals would be disregarded after it had been asked to look at decisions, or where nothing happens after the decision made by a group of people, such as head teachers, is judged to be incorrect by an independent panel?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

The decisions of the independent review panel will not be disregarded. For example, if the decision is quashed, the child’s record is changed so that the exclusion will not count when they choose a new school. If a child has had two exclusions, the parent will no longer be able to choose the new school that the child will go to, but if the decision is quashed by the independent review panel, that will not count as an exclusion. The child’s record will be amended to show that they have not been excluded. Therefore, if a decision is quashed by the review panel, there will be consequences to alleviate the problem for the child.

The most important thing is that we restore and maintain the authority of head teachers in this country. We have serious behavioural problems in too many of our schools, and we must take some serious action to resolve that. Children are being seriously bullied—there were 20,000 calls to ChildLine last year, and some 340 of the callers were contemplating suicide. We hear from teachers’ unions about the low-level disruption that permeates our schools and results in nearly half of young people leaving secondary education without English and maths GCSEs. The problems that we are trying to address are serious. The measure is one among many. The objective behind it is to restore the authority of head teachers to ensure that we have an ordered environment.

Stephen McPartland (Conservative, Stevenage)

Does the Minister agree that the Bill’s purpose is to try to change the current situation? A pupil, who might be severely bullying someone, perhaps threatening them with a knife or physically attacking them, and whose actions would be subject to criminal proceedings by the police could be reinstated after being excluded by the head teacher and governing body. That could create a difficulty with safety in the school, with the rest of the school and teaching staff not feeling safe. Opposition Members were saying that there would be no penalty if a head teacher was considered to have made the wrong decision, but I thought that there would be a financial penalty under the Bill.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

My hon. Friend makes a good point. It can be devastating for a victim of a child who was excluded to see that child return. Sometimes that can lead to the child who is being bullied finding themselves unable to attend school because of the presence of the other child. In that situation, the head teacher really does know better.

On the point made by the hon. Member for North West Durham about the expertise of independent appeal panels, some such expertise is to be found on the governing bodies of our schools. Before we get to the independent review panels, we have the route of using the expertise of those professionals to assess the decision of the head at school and governing-body level. The decisions reached by the High Court in a judicial review are often about reconsidering, rather than a direction. We are trying to use the same approach with the independent review panel.

Kevin Brennan (Labour, Cardiff West)

I associate myself with every remark that the Minister has made about the seriousness of bullying and other such behaviour, but we need to test the proposal to see whether it works. The hon. Member for Stevenage rightly pointed out that there are financial penalties under the measure. The Minister has said that the money will follow the pupil into the new placement. If a head teacher refused to reinstate following the quashing of a decision, could the financial penalty exceed the cost of that pupil’s education after he had left the school?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I think that I mis-spoke earlier. The penalty will go to the local authority, rather than follow the pupil directly to the alternative provision. We have said that the figure will be in the region of £4,000, which is the approximate value of the average weighted per pupil unit figure.

Having responded to those important interventions, I shall make a little more progress. I have said that we believe that an orderly and safe environment is essential if effective teaching is to take place. We are committed to backing head teachers’ authority when pupils’ behaviour warrants exclusion. The clause will remove independent appeal panels, so that violent and disruptive pupils will no longer be reinstated in schools. We still wish, of course, to ensure that exclusions are carried out fairly and we want to provide safeguards for vulnerable pupils.

The clause establishes new review panels that will have the power to uphold an exclusion, recommend that the governing body reconsider the exclusion, or quash an unreasonable exclusion and direct the governing body to reconsider its decision. Where the panel directs a governing body to do so and it decides not to reinstate a pupil, the panel may order the school to pay a financial penalty of approximately £4,000.

Mark Hendrick (Labour, Preston)

In 60 cases, pupils were reinstated. Can the Minister tell us how many cases were dealt with in total, because I want to get a feel for whether 60 represents a majority or minority?

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I thought that I gave those figures. I mentioned that in 2008-09, 640 appeals were lodged, of which 590 were heard. Of those appeals, 150—which is approximately a quarter—were determined in favour of the parent, and of those, 60 pupils ended up going back to the original school.

Mark Hendrick (Labour, Preston)

About 10%.

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

Yes—of the original number of appeals lodged.

To ensure that exclusions are carried out fairly and that safeguards are provided for vulnerable people, the clause establishes new review panels that will have the power to uphold an exclusion. We will set out in regulations rules for the handling of the financial penalty. At 4.34 pm on Monday, I circulated to the Committee—[Interruption.] And now it is Thursday—4.34 pm on Monday is not so bad when we are discussing the clause today.

Meg Munn (Labour, Sheffield, Heeley)

I can tell the Minister that I checked my e-mails, and mine did not arrive until 4.35 pm. [Interruption.]

Nick Gibb (Conservative, Bognor Regis and Littlehampton)

I will consider my position with regard to giving the Committee false information on that matter.

The regulations set out rules for handling that financial penalty, but we intend it to go to the pupil’s local authority for use in supporting alternative provision. In addition to the penalty, the school will lose the per-pupil funding for the rest of the year, calculated proportionately, and, of course, it will not have the per-pupil funding for the following year for that child.

The rest of the debate is in Hansard.