Punishment and Restraint of Children (Amended)

If you haven’t been keeping up with proposed Education Bill changes relating to Mobile Phones, here is a summary, along with a brief rant.

Here is what appears to be the most current DfE guidance on mobile phones:

School staff can confiscate a mobile phone as a disciplinary penalty, and have a legal defence in respect of this in the Education and Inspections Act 2006 (s 94). Staff cannot search the contents of a pupil’s mobile phone without the consent of that pupil. Where a pupil refuses to allow the contents of his/her phone to be searched, the matter can be referred to the police who have more extensive search powers. If the pupil is suspected to have committed a criminal offence, it may be advisable to involve the police from the outset.

All fairly reasonable. If the phone is being used in a way that compromises discipline then fine, confiscate it.

The new Education Bill seeks to amend a section of the 1996 Education Act headed “Punishment and Restraint of Children” – try reading that without thinking “there must be some mistake, surely with a section like that you must mean the 1776 Act”.

The changes intend that in future school staff will be allowed to search for phones and other items banned by the school if they

…reasonably suspect [the item] 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.

The Bill also contains the following where the item confiscated is an electronic device:

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.

Following an examination, if the person has decided to return the item to its owner, retain it or dispose of it, the person may erase any data or files from the device if the person thinks there is a good reason to do so.

As far as the act is concerned, the “person” in this context means “any teacher who works at the school and any other person who, with the authority of the head teacher, has lawful control or charge of pupils at the school”.

So, to summarise: Any member of staff who has been put in charge of a child at a school can, if they have the suspicions indicated above, search that child for their phone, look through the data on it (texts, pictures, video, whatever) and delete items if they think there is a good reason to do so. The bill does suggest that schools will have to have due regard to guidance issued by the Secretary of State in implementing these measures.

Personally, I find these measures quite disturbing on a number of levels. Taken as a whole I find it hard to disagree with Liberty’s contention that

…confiscating mobile phones and looking through the phone records, text messages and address lists is proportionate for terrorism investigations, not breaches of school rules.

Now, it might be argued that if a student has used a mobile in class to send a text to another student that the teacher has the right to know what the note says. I don’t agree. The issue is the passing of the message. Deal with that. I am not interested in the message. Its a bit like a student whispering to the student next to them. Can you force the student to tell you the message that was whispered? Not unless you start to allow students to be waterboarded (and I am checking the amendments to the bill to ensure that has not crept in).

So, an 18 year female student uses their mobile phone in a way that leads the teacher to be reasonably suspicious so as to search her for the mobile. Notwithstanding that the bill also seems to be making provision for her to be searched, without a witness present, by a male teacher if a female teacher is not available and he thinks the need is urgent, I ask the following question. What could they be suspicious of  that is serious enough to warrant a search of the student that does not also merit the calling of the police?

In our society schools are there to help student to learn, teachers are there to teach. When we suspect individuals of serious offences we have a police force that is empowered and trained to deal with it. A society that confuses and conflates these two things, teaching and policing, is a society that has lost its way. Schools that embrace and use these powers will lose the trust of their students and, perhaps more importantly, that of the parents as well.

My advice to my children will be clear and unequivocal. Password protect your phone and always keep it locked. I would also suggest that schools take legal advice regarding the provisions of the Computer Misuse Act 1990 which make unauthorised access an offence before they start to read and delete their students data.

Rant over.

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