Draft Schools (Specification and Disposal of Articles) Regulations 2012

The Committee consisted of the following Members:

Chair: Mr Mike Weir 

Andrew, Stuart (Pudsey) (Con) 

Boles, Nick (Grantham and Stamford) (Con) 

Brennan, Kevin (Cardiff West) (Lab) 

Byles, Dan (North Warwickshire) (Con) 

Cunningham, Mr Jim (Coventry South) (Lab) 

Donohoe, Mr Brian H. (Central Ayrshire) (Lab) 

Dunne, Mr Philip (Ludlow) (Con) 

Gibb, Mr Nick (Minister of State, Department for Education)  

Graham, Richard (Gloucester) (Con) 

Heyes, David (Ashton-under-Lyne) (Lab) 

Jones, Graham (Hyndburn) (Lab) 

Kelly, Chris (Dudley South) (Con) 

Lammy, Mr David (Tottenham) (Lab) 

Munt, Tessa (Wells) (LD) 

Offord, Mr Matthew (Hendon) (Con) 

Rogerson, Dan (North Cornwall) (LD) 

Simpson, David (Upper Bann) (DUP) 

Twigg, Derek (Halton) (Lab) 

Alison Groves, Committee Clerk

† attended the Committee

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First Delegated Legislation Committee 

Tuesday 28 February 2012  

[Mr Mike Weir in the Chair] 

Draft Schools (Specification and Disposal of Articles) Regulations 2012 

10.30 am 

The Minister of State, Department for Education (Mr Nick Gibb):  I beg to move, 

That the Committee has considered the draft Schools (Specification and Disposal of Articles) Regulations 2012. 

It is a pleasure to serve under your chairmanship, Mr Weir. The overarching theme of Government policy is clear: schools must be safe and disciplined environments within which pupils are able to learn and to fulfil their potential. The Government believe that good behaviour in schools is vital and that it is essential, so that teachers can teach and pupils can learn. At present, far too many teachers say that poor behaviour is driving people out of the profession. In the schools White Paper, “The Importance of Teaching”, published in November 2010, the Government gave a commitment to 

“act to restore the authority of teachers and head teachers, so that they can establish a culture of respect and safety, with zero tolerance of bullying, clear boundaries, good pastoral care and early intervention to address problems.” 

Strengthening teachers’ powers to search is an important part of that process. It means they have the powers they need to maintain and promote good behaviour in their school. 

The Government first announced their intention to strengthen teachers’ powers to search pupils, including making these regulations and giving teachers a more general search power, in a written ministerial statement on 7 July 2010. The schools White Paper reaffirmed that intention. 

I want to set out briefly what these powers mean in practice. Authorised members of school staff can already search for knives and weapons, alcohol and illegal drugs. They can also search for stolen items. The new general search powers included in section 2 of the Education Act 2011, which comes into force on 1 April, extend these powers further. Staff will then be able to search pupils for any article which has been, or is likely to be, used to commit an offence or cause harm or damage to property. Authorised school staff will also be able to search for items banned by the school and which are identified in the school’s own rules as items which may be searched for. 

The regulations build on the existing provisions introduced by the Apprenticeships, Skills, Children and Learning Act 2009, which amended the Education Act 1996, by adding tobacco and cigarette papers, pornographic images and fireworks to the list of items prohibited under sections 550ZA and 550ZC of the 1996 Act. The Government believe that each of those items has no place in our schools. It is necessary in the

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interests of safety and discipline that teachers have a specific power to search for them, to confiscate them and to dispose of them appropriately. 

The Education Act 2011 introduced into the 1996 Act a new provision giving teachers the permissive power to search for any item that the school rules identified as an item for which a search may be made. That is now in section 550ZA(3)(g) of the 1996 Act, in which paragraphs (a) to (f) list a range of specific items that can be searched for, as introduced by the previous Government, principally through the ASCL Act. They include knives, offensive weapons, alcohol, illegal drugs, stolen items and any other items added by regulation. It is that last provision, in section 550ZA(3)(f) that we are using to make the regulations that we are discussing today. 

The question, therefore, is why, given the new provisions in paragraph (g) of that list, introduced by the Education Act 2011, which enable searches to be made for any item banned by the school rules, we need further specificity in the items that can be searched for. The reason is that the Act does not permit the use of such force as is reasonable in the circumstances to search for items banned by the school rules. Section 550ZB(5) of the 1996 Act says that a person exercising the power in section 550ZA to search for an item within section 550ZA(3)(a) to (f)––that is, excluding paragraph (g)–– 

“may use such force as is reasonable in the circumstances for exercising that power.” 

This power was introduced by the ASCL Act, and of course would only apply in exceptional circumstances. What is clear is that such a power would not be used, for example, to search for chewing-gum, which, although banned by the school rules, is not of such immediate danger or harm to children or adults at the school that a search could ever warrant the use of reasonable force. Items such as tobacco, pornography and fireworks are of such danger, or potential danger, that we consider that teachers not only should have the power to search for them when they need to in certain circumstances, but might also need to use force to ensure that those items were retrieved. 

On the issue of pornography, searches would be able to be made for any item that authorised staff members have reasonable grounds for suspecting contained such an image, including books, magazines or electronic devices. For example, if a teacher reasonably suspects that a pupil has a pornographic image on their mobile phone, the regulations would enable the teacher to search for that phone, and to search the content on the phone for that image. 

Kevin Brennan (Cardiff West) (Lab):  The Minister may be about to do this, but for the information of the Committee could he give us the legal definition of pornography in this context? 

Mr Gibb:  I will do so momentarily. 

Regulation 4 also sets out how the additional prohibited items should be disposed of. School staff can keep or dispose of tobacco and fireworks. Pornographic images may be disposed of unless their possession constitutes a specified offence—that is, it is extreme or child pornography. In that case, it must be handed to the police as soon as possible. That approach is consistent with that taken in the ASCL Act in respect of the disposal of illegal drugs and stolen items. 

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The hon. Gentleman asked for the definition of a pornographic image. For the purposes of these regulations, “image” is defined as 

“a moving or still image (produced by any means), or data (stored by any means) which is capable of conversion into an image”. 

The definition of pornographic image covers a broad range of pornographic images, from topless photographs in tabloid newspapers and magazines to extreme pornography. I will happily expand on that further if the hon. Gentleman wishes me to do so. 

Finally, we have already slimmed down the guidance on the use of search powers in the “Screening, Searching and Confiscation: Advice for headteachers, staff and governing bodies” document. We will update that guidance to reflect the changes introduced by the regulations. I believe that the regulations, when added to the changes made by the Education Act 2011, building on the reforms introduced by the previous Government under the ASCL Act 2009, will go a long way towards shifting the balance of authority back to the teacher in the classroom. I commend the regulations to the Committee. 

10.38 am 

Kevin Brennan:  It is a pleasure to serve under your chairmanship, Mr. Weir, and a great pleasure to face the Minister once again in a Statutory Instrument Committee. We had a little exchange last week; I think that our exchange today may be a bit shorter. 

As I have said before to the Minister, as a former Education Minister and a former teacher, I believe it is absolutely essential that teachers have the authority, the ability and the backing to create a calm, orderly environment in the classroom. That is what is essential for pupils to be able to learn and, indeed, it is essential for those pupils who occasionally seek to cause disruption so that they too are able to learn. As the Minister rightly acknowledged in the latter part of his remarks, the provision represents an attempt to build on some of the things done under the previous Government, often with his support, to make it clear what powers teachers had to create discipline in the classroom because some confusion had arisen about what common law powers were available to teachers. Back in the ’80s and ’90s, I had felt perfectly clear about my common law powers to confiscate and to act in the classroom, but doubts had since been raised. It was clear from Sir Alan Steer’s work under the previous Government that confusion had arisen in the profession. It was useful to clarify the situation in the ASCL Bill of 2009, which included the provision to be able to add items to the list of prohibited items. That is the subject of the statutory instrument. 

That said, it would be useful to put a number of questions to the Minister so that the Government’s intentions and what the regulatory change will achieve are on record. First, how will the use and effectiveness of the new powers be monitored? In relation to the definition of pornography in the regulations, I think the Minister’s earlier answer confirmed that it would be perfectly in order for a teacher to confiscate a copy of The Sun newspaper from an 18-year-old sixth-former who had bought it that morning and was looking at page 3—or, indeed, not looking at it—in the classroom. I think he said that a photograph of a topless model in a tabloid newspaper is covered by the definition of pornography in the regulations. Will he confirm whether that is so? 

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Is there any distinction in the regulations between confiscating items from secondary school students over and under the age of 18? Is there guidance on the threshold of suspicion that must be present for a teacher to look through a school student’s smartphone, iPad or laptop in search of pornographic images? Do teachers need to ascertain ownership of the images or the item concerned before any deletion takes place? What would be the Government’s view if, for example, a pupil brought in homework on a computer belonging to their parents and another profile on that computer contained pornographic images? Would the school have power to delete the images without reference to the parent concerned? The Minister will be aware that it is common—on an Apple computer, for example—to have a profile for one person and another for someone else. Such profiles are often separated from each other by password entry. Under the regulations, would it be in the school’s power to search the parent’s profile on the same device in order to delete pornographic items? Could it search for illegal items? 

In the provisions, teachers have power to keep as well as dispose of fireworks and tobacco. I am not saying that this would be good practice, but would there be anything to stop them confiscating such items and keeping them for their own use? Is that specifically prohibited in any part of the regulations or advice and guidance? In that context, what does “keep” mean? Does it mean to store in the school for a period of time? The school is given a choice in the regulations to “keep or dispose” of items. How does the Minister envisage such choice being exercised? Should it specifically not be permissible for the staff member involved to keep cigarettes, for example, for personal use or to pass them on to others? Why are the regulations not clear that items such as tobacco should be disposed of rather than kept? 

Under the law as it stands, to what extent can teachers already confiscate items? The explanatory notes state that the measures give teachers a power, not a duty. However, do they have a duty to exercise the powers if they have reasonable suspicion that a pupil possesses illegal pornography, such as child pornography? 

Given that the 2011 Act provides for searches of any item banned by school rules, are these regulations in any sense otiose? In fairness to the Minister, he has attempted to answer that in his opening remarks by indicating why that is the case, but will he clarify for the Committee why it is not otiose to introduce these regulations, when it is already possible to search for any item banned under school rules? 

The Government held a consultation, to which I understand there were three responses. Two of those supported the Government’s action and the other said that any extension of these powers should be used with great caution. Will the Minister indicate which organisations responded to the consultation and which one indicated that it was concerned that the powers needed to be used with caution? 

Why are the Government not sticking to their promise that, except in exceptional circumstances—this can hardly be described as an exceptional circumstance—statutory instruments would be laid with a common commencement date of 1 September, so that they began at the beginning

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of the school year, which is not happening in this case? How can this, in any credible sense, be described as an exceptional circumstance? 

Finally, how will the Government monitor how this power is being used in relation to the gender, ethnicity, special needs or disability of the students concerned? I am interested to hear the Minister’s response to as many of those questions as he can. Of course, if he needs more time to respond to any of the more detailed questions, perhaps he could let the Committee know. 

10.46 am 

Mr Gibb:  I thank the Opposition spokesman, the hon. Member for Cardiff West, for his response. I will try to cover as many items as I can. For those that I do not cover, I commit to writing to him. 

The first question the hon. Gentleman asked was about how the new powers will be monitored. In paragraph 12 of the explanatory memorandum, it states that the Department has 

“no plans to formally” 

monitor or 


the use of these powers, but we will be 

“alert to any feedback” 

from teachers, parents or others on how these powers operate in practice. We will consider and respond to any information that we receive on that. 

On 18-year-olds, we have been clear that there is nothing in these regulations that will prevent a pupil aged 18 from being searched. Someone who is over 18 who attends school, subjects themselves to the rules of the school, and teachers need the powers to enable them to enforce those rules. I think that is entirely reasonable. 

On the issue of suspicion, it is imperative that before these powers are used the staff have a reasonable suspicion that the article contains pornographic images or, if they are using the powers under section 2 of the Education Act 2011—not in these regulations—that there is an initial suspicion that the article, for example, might be used to commit an offence. 

On the disposal of tobacco, the hon. Member for Cardiff West asked whether the teacher could make personal use of it. There have been suggestions that the school could dispose of some of these items, such as alcohol or tobacco, in a school fair to raise funds for the school. The provisions for the disposal of tobacco are the same as the existing provisions for the disposal of alcohol. We expect teachers to dispose of it sensibly and that would not include keeping it for their personal consumption. 

Kevin Brennan:  So in this context, what is the purpose of the provision that specifically says that the school can keep items such as fireworks and tobacco, which is excluded in the case of pornography? Presumably there is a purpose for that provision. 

Mr Gibb:  The purpose is so that it can be kept and then destroyed or disposed of. It is different for pornography because if there is something in the pornography that makes it a criminal offence, it needs to be kept to be sent to the police, so that they can take further action. 

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If I may, I will turn to the issue of what happens if the pupil says that the electronic device is not theirs. The fact that a pupil claims that the device is not theirs does not prevent the teacher from examining the data on the phone, if they are satisfied that there is a good reason to believe that it contains pornographic images. Nor will it prevent the erasure of such data or the handing of it to the police if such images are found. Under section 550ZD of the Education Act 1996, as amended by the Education Act 2011, when a person erases data or a file from an electronic device under the regulations and proves that the erasure was lawful, that person is not liable in any proceedings in respect of the erasure of the data or any damage or loss that arises as a consequence. 

The Government are confident that a member of staff who could show that he or she had examined and disposed of the data on a mobile telephone that had been seized, following the proper and lawful exercise of the searching powers under the regulations, would not be liable in any proceedings brought, for example, by a parent who turned out ultimately to be the owner of the telephone. 

Tessa Munt (Wells) (LD):  The Minister said that he would ensure that new guidelines were sent to teachers and head teachers to line up the new regulations with the current regulations, and make sure that matters were updated. Could I ask for some clarification about the return of mobile phones to young people when they have been confiscated? I am particularly concerned about young people who are vulnerable. I know that we have had that debate before, but I want clarification of the fact that the guidelines will make sure that there are fairly reasonable conditions for the return of mobile phones, especially to young carers, who might be as young as eight and as old as 18. Such children often have a slightly chequered school history, which might make them find the attentions of teachers more frequently than their classmates. 

Mr Gibb:  I am grateful to my hon. Friend for raising that issue. I will write to her about it. The guidance is already published. We have slimmed it down to nine pages from the previous voluminous set of guidance and advice. The advice “Screening, Searching and Confiscation” is out, as it was published, but we shall revise it ready for 1 April, when the powers come into force. I know that the matter is of enormous concern to my hon. Friend, especially as she represents a rural area where the use of phones is not just a convenience and a fun item, but an important safety measure. 

That brings me to the point made by the hon. Member for Cardiff West about why the powers are coming into force on 1 April, rather than 1 September in line with my commitment to the merits committee. The reason for such action is that the measures are powers, not a duty. They are permissive powers to enable teachers to take such action, but they do not impose further duties on schools. We believe that they fall within the exceptions to the commitments given to the merits committee. The matter was also well heralded in the ministerial statement that was published in July 2010, as it was in the White Paper. 

I want to go through the list to make sure that I have covered all the other points. The hon. Gentleman asked about consultation. The two head teacher unions, ASCL

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and the National Association of Head Teachers, expressed support for the measures. It was actually Ofsted that recommended caution in its response to the consultation process. The final issue raised by the hon. Gentleman, which I have not covered, is whether the specificity of the regulations is otiose, given that the Education Act 2011 introduced the general power for teachers to search for items banned by the school rules. I hope that I set out fairly clearly in my opening remarks that the general rule falls within list (a) to (g). Only with respect to items (a) to (f) in that list, under section 550ZA(3) of the 1996 Act, can reasonable force be used to enforce the search. 

Given the harm that is inherent in those particular items, we considered that just relying on the general rule without the ultimate ability of teachers to use force was not sufficient, when there might be circumstances in which a teacher is faced with children who are concealing either on their person or in their private property things such as fireworks, which could be of immediate harm and danger to the school. There might be exceptional circumstances in which teachers feel the need to obtain such items before harm is caused, either to the pupils themselves or to other pupils or adults at the school. 

I think that I have responded to all the issues the hon. Gentleman raised. I ask the Committee to agree that we have deliberated on the draft regulations. 

10.55 am 

Kevin Brennan:  I should briefly make a confession to the Committee. When I was 11, I had to write a four-sided essay on the dangers of fireworks after I brought into school some bangers, which I had secured in Pontypool market on my way in. I learned my lesson at a very early age, and of course I confiscated many similar items from pupils in my teaching career. 

Dan Rogerson (North Cornwall) (LD):  I just wonder whether the hon. Gentleman would like to circulate a copy of that essay, if he still has it. 

Kevin Brennan:  I think that it might be above the hon. Gentleman’s ability to understand. 

I thank the Minister for his responses to the questions. I will not prolong the Committee, but there are a couple of things that I hope he will write to us about—perhaps he could include them in the letter that he promised to write to the hon. Member for Wells. I am still not clear about “keep”. This is a genuine inquiry and I am sure officials have the answer somewhere. What is the purpose of expressing in the regulations the ability to keep or dispose of fireworks or cigarettes? 

In contrast to what the Minister seemed to say, the regulations do not envisage that pornographic material will be kept, unless it has to be because it is deemed

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“extreme” under the legal definition and the police have to be informed, which is a different issue altogether. I am sure that there is a sensible answer somewhere in the system, and I would be grateful if he wrote to the Committee on the detail of what is envisaged by the “keep or dispose of” distinction. 

Let this be a warning to parents. A pupil may have not only a mobile phone, but perhaps something like an iPad or tablet computer, as may often be the case, which is not their own. If it belongs to a parent, contains their parent’s profile, has all of their parent’s material on it—there may not be a separate profile, which would be somewhat shocking—and contains material that the parent would not want teachers in the school to look at, it is perfectly within the legal powers for the teachers to trawl through that computer. The Minister is right, and I agree. If they find such material in a parent’s profile on the computer, they have, first, a legal right to erase it, and secondly, a legal duty to report it if there is anything that comes under the legal definition of “extreme” pornography. It is important that people understand that that is the situation. It is right, because that material should not be brought into our schools. I want to be clear that that is what the Minister says the regulations mean. 

Finally, although the Minister did not refer directly to my question, unless he intervenes to state the contrary, I will take his opening statement to mean that it is possible under the provisions for a teacher to confiscate a copy of The Sun newspaper from a pupil of any age, because it could come under the legal definition of pornography in the regulations. I think that he said that in his opening remarks, and unless he intervenes, I will assume that that is exactly what he meant. [ Interruption. ] He is twitching. 

Mr Gibb:  I do not resile from what I said earlier, but a definition is included in regulation 2: 

“‘pornographic image’ means an article containing an image of such a nature that it must reasonably be assumed to have been produced solely or principally for the purpose of sexual arousal”. 

If the hon. Gentleman thinks that that applies to page 3 of The Sun, then it will apply. 

Kevin Brennan:  May I make it clear that it was not me who first mentioned “topless photographs in tabloid newspapers” in the debate? I hope that I am quoting the Minister accurately, but I think that it is accurate enough for our purposes. It was he who said it and I am probing what he meant. His words were clear enough. On that point, I do not intend to detain the Committee further. 

Question put and agreed to.  

10.59 am 

Committee rose.  

Prepared 29th February 2012