Statement on consensual search of Scottish school pupils

Date: 7th February 2017
Category: Civil Rights and Freedoms

The Commissioner's office has released a statement regarding the Deputy First Minister's response to statutory powers for teachers to search pupils for weapons in school.

Together support the following statement made by CYPCS:

The Deputy First Minister's statement this Tuesday (31st Jan) that he will not create a new statutory power for teachers to search pupils for weapons in school was one to which we can lend our support.

We remain concerned, however, that the Deputy First Minister believes it acceptable for children and young people to be searched by teachers on a 'consensual' basis.

The concept of 'consensual' when searching a child or a young person has been proven to be a misnomer. A power imbalance naturally exists between a child and an adult. When that adult is in a position of authority, that power imbalance is exacerbated. As such, any 'consent' to such a search cannot be said to be freely given.

In his statement, John Swinney referenced the work that had been carried out by the Independent Advisory Group on Stop and Search, of which we were part.

Only last week, the Justice Sub-Committee on Policing took evidence on the new Code of Practice on Stop and Search. When the Code comes into force later this year (subject to Parliamentary approval), the practice of 'consensual' stop and search by Police Officers will end. Police Scotland has already taken significant, and welcome, steps to minimise its use.

The Deputy First Minister was keen to emphasise that he didn't want to 'radically change the teacher-pupil relationship' by putting a statutory power in place. However, we would argue using guidance to 'strengthen and clarify the Scottish Government's position' on the use of 'consensual' search runs the risk of doing just that.

All pupils deserve to be safe at school. Bailey Gwynne's tragic death should rightly lead to improvements in the way in which we tackle the issue of weapons in schools. However, there is a delicate balance of rights to be struck here.

We should be creating a culture within all our schools where pupils know the true risks of carrying a weapon and feel empowered to come forward, when they have concerns their peers might be doing so. We shouldn't be asking teachers to search their pupils.

There is another way forward.

Where a pupil brings a weapon into school, or is thought to have done so, they should in the first instance be asked to hand it over to their teacher. Where they refuse to do so, then the teacher's next step should be to call the Police. The Police can then decide whether a statutory search is necessary.

The Independent Advisory Group's report on Stop and Search very clearly outlined the harm 'consensual' search could cause children and young people. If it is deemed unacceptable for the Police to use such a power, how then can it be acceptable in our schools?

We would urge the Deputy First Minister to consider finding an alternative solution, and one which can both keep pupils safe and safeguard their rights.