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Clause 34: Authorised news publications
156. Clause 34 makes provision for authorised news publications. There are five qualifying conditions for a publication to be classified as an authorised news publication These can be summarised as that publication has to be—
a) of information gathered by an accredited news representative through attending the proceedings;
b) by that representative, or with his consent or under a contract or similar arrangement, or taken from an existing authorised news publication;
c) not of identification information or sensitive personal information, unless expressly permitted by the court;
d) not of an order in adoption or parental order proceedings, or any judgment, unless expressly permitted by the court under clause 33;
e) not of information which the court has ordered not to be published, or of an order which the court has ordered not to be published under clause 33.
157. Condition 1 (set out in subsection (2)) requires a news representative to be accredited. Clause 41 defines “accredited news representative” to mean a representative of one or more news organisations who belongs to a class of representatives on which rules of court confer a right to attend the proceedings in question. The production of a UK Press Authority Card is set out in rule 10.28 of the Family Proceedings Rules 1991 as sufficient evidence of accreditation. Condition 1 also requires that the news representative acquired the information which is to be published by attending the proceedings. Attendance at family proceedings is governed by rules of court: the Family Proceedings Rules 1991 (rule 10.28) were amended in April 2009 to give the media, but not the public more generally, a right to attend most family proceedings subject to discretion of the court to exclude their attendance in specific circumstances.
158. Condition 2 (set out in subsection (3)) requires publication to be by the accredited news representative who acquired the information, or with that representative’s consent or pursuant to a contract or other agreement with that representative (for example, a report submitted to a newspaper by a staff journalist). Publication is also allowed by a person who has obtained the information from an authorised news publication (allowing further reporting of articles already classified as an authorised news publication).
159. Condition 3 (set out in subsection (4)) requires that the information is not “identification information” or “sensitive personal information” or “restricted adoption information” or “restricted parental order information”; or that if it is, then either the court has specifically permitted publication of the information, or the information identifies a professional witness and has not otherwise been specifically restricted by the court. “Identification information” and “professional witness” are defined in clause 41, “sensitive personal information” in clause 41 and Schedule 3 and “restricted adoption information” and “restricted parental order information” in clause 36.
160. Condition 4 (set out in subsection (5)) in conjunction with Condition 5 (set out in subsection (6)), ensures that a publication of an order or judgment which would not qualify as an authorised publication within clause 33 cannot qualify as an authorised news publication either.
161. Condition 5 (set out in subsection (6)) requires that the publication has not been prohibited by the court, and that it does not breach any restriction imposed by the court, either under the power of the court given in this subsection or under clause 33(1)(b) in relation to an order
162. Subsection (7) allows for the Court’s powers to permit, prohibit or restrict publication of information under this clause to be exercisable not only on application but also on the court’s own initiative.
Clause 35: Permitting publication for the purposes of section 34: general
163. Clause 35 provides the conditions for the court to exercise its power to relax the automatic restrictions on publication of identification information or sensitive personal information (permitting publication of restricted adoption or parental order information is subject to different conditions provided for in clause 36).
164. Subsection (2) requires the court to be satisfied of one or more of the matters listed in subsection (3) before it can permit the publication. The court is also required by subsection (4) to take account of any risk which publication would pose to the safety or welfare of any individual who is either involved in, referred to in or, more widely, connected with the proceedings. A person connected with the proceedings might be, for example, a relative of the child subject to care proceedings, who is not directly involved in the proceedings himself or herself but who frequently looks after the child.
Clause 36: Permitting publication for the purposes of section 34: adoption etc
165. Clause 36 provides the conditions for the court to exercise its power to relax the automatic restrictions on publication of “restricted adoption information” or “restricted parental order information”. This is information which would lead to the identification of any person as someone who is, or may be, an adopter or adopted person, or the equivalent for parental orders (as defined in subsection (9)). This includes information about the whereabouts of such a person.
166. Subsection (4) requires the court to be satisfied that the publication of any such information will not prejudice the welfare of the person subject to the adoption or parental order where that person is either a child, lacks the capacity to consent to the publication or cannot be found. It should be noted that the reference to “welfare” does not relate to the upbringing of the child, and there is no intention in using that general term to indicate that the welfare checklist in section 1 of the Children Act 1989 is to be imported as a test.
167. Subsection (5) provides that where subsection (4) does not apply the court may not permit publication except with the consent of the person subject to the adoption or parental order.
168. Subsection (6) requires the court to have regarded to whether any prospective or actual adopter of the child (or any parental order equivalent) has consented to the publication.
169. Subsection (7), like clause 35(4), requires the court to take into account any risk which publication would pose to the safety or welfare of any individual who is either involved in or, more widely, connected with the proceedings.
Clause 37: Prohibiting or restricting publication for purposes of section 34
170. Clause 37 provides the conditions for the court to exercise its powers to impose restrictions on publication of information relating to the proceedings.
171. Subsection (2) requires the court to be satisfied that there is a real risk that publication would prejudice any one or more of three types of interest: the safety of any person, the welfare of a child or vulnerable adult, or the interests of justice in the proceedings in question. “Welfare” has the meaning explained in relation to clause 36(4); and the reference to the interests of justice in the proceedings is intended to cover a wide range of matters, which might include undue impact on the privacy of a person involved in the proceedings.
172. Subsection (3) makes specific provision giving the court a power to restrict publication of information which would identify a professional witness. This information would otherwise be publishable in accordance with Condition 3 in clause 34. This power may be exercised if the court is satisfied that the information published would lead to the identification of another person involved in, referred to in or otherwise connected with the proceedings (other than another professional witness), or that the information is sensitive personal information relating to the proceedings. The power may also be exercised if the professional witness is, has been or will be, involved in providing care or treatment for a child or other person involved in, referred to in or connected with the proceedings, other than for the purpose of being a professional witness. The court may also restrict publication on the ground of risk to safety of the professional witness or his or her family, under subsection (2).
Clause 38: Defences to contempt of court
173. Clause 38 provides for defences available when information relating to proceedings has been published but is either automatically restricted or restricted by order of the court. Accredited media representatives and publishers will be required to have made every possible effort to identify information as restricted prior to publication in order to be able to use any defence. Ignorance of the legislation will not be a defence.
174. There are two defences, both based on ignorance of the nature of the information. In subsection (2), the defence is that the person did not know, and had no reason to suspect, that the information was information relating to the proceedings. In subsection (3) the defence is that, in a case where all other conditions for a publication to be an authorised publication were met, except condition 3, the person did not know and had no reason to suspect that the information was identification, sensitive personal information, restricted adoption information or restricted parental order information. (Condition 3 is defined above under clause 34). The second defence would not be available to a person publishing in breach of a specific restriction imposed by the court.
Clause 39: Appeals against decisions under Section 33 or 34
175. Clause 39 ensures that provision will be made in rules of court, so far as is necessary, to provide for a system of appeals against decisions to permit or refuse publication.
Clause 40: Power to alter treatment of sensitive personal information
176. This clause introduces Schedule 2, which provides for amendments designed to change the way in which sensitive personal information is treated under the new reporting regime, from being a category of information which may not be published unless the court gives permission, to being information which, together with other information which is not identification information, may be published unless the court prohibits or restricts publication. These “Part 2 amending provisions” (as they are referred to in subsection (2)) include changes in the test which is to apply where the court is considering whether to restrict or prohibit the publication of information in clause 37(2), to reflect the fact that information which is more sensitive will be more frequently in issue.
177. The Part 2 amending provisions will have effect only when commenced. Subsections (3) to (6) provide for preconditions for the exercise of the power to make an order commencing those provisions, to reflect the fact that the move in sensitive personal information from the starting version of the Act to the amended version is a significant one. The Lord Chancellor must first allow for a period of 18 months to elapse from commencement of clause 32 (for any purposes, so that if it is commenced in relation to certain kinds of court, for example, that will start the time period running), and can then (and only then) carry out a review of the operation of the reporting regime, and must then set out the conclusions of the review in a report and lay the report before Parliament. Only when all three preconditions (18 month period, review, laying of report) have been fulfilled may the Lord Chancellor make the commencement order bringing the Part 2 amending provisions into force; and the commencement order itself is subject to affirmative resolution procedure. The Lord Chancellor does not have to carry out a review or lay a report before Parliament; but may not commence the Part 2 amending provisions without having done so.
Clause 41: Interpretation of Part 2
178. Clause 41 defines various terms used in the preceding clauses. Subsection (1) defines specific terms, subsection (2) explains the meaning of “involved in the proceedings”, and subsection (3) empowers the Lord Chancellor to amend subsection (1) to change the definition of professional witness and the list of sensitive personal information set out in schedule 3, by statutory instrument subject to affirmative resolution procedure (see subsection (5)).
179. The definition of “identification information” refers to “someone who is or has been involved in, referred to in or otherwise connected with the proceedings”. This reference to “has been” confers indefinite anonymity on those who have been involved in, referred to in or otherwise connected with the proceedings (with the exception of professional witnesses, as defined in clause 41).
180. Subsection (6) provides for courts to retain their existing powers, other than under these clauses, to prevent or restrict the publication of information in relevant family proceedings. These may relate to different sorts of confidential information, for example.
181. Subsection (7) is a transitional provision which applies the new regime to proceedings commenced or still active after the legislation comes into force but leaving the existing law to apply to proceedings which were concluded before the commencement of the legislation.
PART 3: MISCELLANEOUS AND FINAL PROVISIONS
Clause 42: Charitable status of Academy proprietors etc
182. This clause applies to the legal entities that carry on Academies, CTCs and CCTAs under agreements entered into with the Secretary of State under section 482(1) of the EA 1996. If these entities (“Academy proprietors”) are companies limited by guarantee with an exclusively charitable purpose, then they will fall within the ambit of this clause.
183. In relation to such Academy proprietors, this clause provides first that they will be charities and second that they will be exempt from the requirement to register with the Charity Commission. The Cabinet Office will appoint a principal regulator for such Academy proprietors.
Clause 43: Fees for pre-registration inspections of independent educational institutions
184. This clause amends section 111 of the Education and Skills Act 2008 to enable regulations to require the proprietor of an independent educational institution to pay a fee for an inspection carried out for the purposes of determining the institution’s readiness for registration. (Such an inspection will be carried out under section 99 of that Act.) Academies, CTCs and CCTAs are not required to pay inspection fees.
Clause 44: Interpretation of Act
185. This clause provides definitions of terms used in the Bill.
Clause 45: Amendments and repeals
186. This clause gives effect to Schedules 4 and 5 which contains minor amendments to other Acts and repeals.
Clause 46 Transitional provision
187. Clause 46 makes provision for any reference in the Bill to a “local authority” to be construed as a reference to a “local education authority” until an order under section 162(1) EIA 2006 has been made and laid. An Order under section 162(1) will amend all statutory references to “local education authority” to “local authority”.
TERRITORIAL EXTENT AND APPLICATION
188. With one exception, the Bill extends to England and Wales only, though much of the Bill applies only in England. A technical amendment is made to the law of Northern Ireland as a result of other changes made by Part 2 of the Bill, but the effect of the amendment is simply to maintain the current position for Northern Ireland.
189. The Bill does not extend to Scotland.
Territorial Application: Wales
190. Part 1 includes provisions at introduction that are within the legislative competence of the National Assembly for Wales. Clause 20 expands the existing powers of the Welsh Ministers to require information to be supplied in respect of schools, and confers a new power on the Welsh Ministers to make regulations requiring information to be supplied about education provided under section 19 of the EA 1996 (alternative provision). Clause 29 provides for a LSCB in Wales to be able to require a person or body to supply information to it. Legislative consent from the National Assembly for Wales is therefore required and has been sought.
191. The Part also makes an amendment to the Government of Wales Act 2006, conferring power on the National Assembly for Wales to make provision about the regulation of home education, and the inspection of services provided by local authorities for persons involved in providing home education.
192. Clause 49(3) provides that clause 29 comes into force on whatever day the Welsh Ministers appoint by order.
FINANCIAL EFFECTS AND EFFECTS OF THE BILL ON PUBLIC SECTOR MANPOWER
193. A number of the provisions in this Bill would have an impact on manpower in Government Departments and agencies:
194. SEND Appeals -in circumstances where, following a review of a child’s statement of special educational needs, a local authority decides not to amend the statement, parents would have a new right of appeal to the First-tier Tribunal (Special Educational Needs and Disability). This may lead to a moderate increase in the number of First-tier Tribunal appeals, and to a very small manpower demand on the Tribunal Service and the Legal Services Commission, though not likely to lead to an increase in local authority staff. Increased costs, however, are likely to be offset by improvements in the way statements are written and better conversations between parents and local authorities as a result of ongoing departmental policies to improve SEND. The overall effect is expected to be cost neutral. The anticipated financial impact is set out in more detail in the Impact Assessment.
195. Academies - proprietors of Academies would no longer be regulated by the Charity Commission, and this role would instead be performed by a regulator appointed by the Minister of the Cabinet Office- in practice, likely to be the Secretary of State for Children, Schools and Families (although the Young People’s Learning Agency may be asked to carry out the day to day functions associated with this duty on the Secretary of State’s behalf). This may mean that there would be an additional demand for manpower in central government or one of its agencies but this would be met within existing resources.
196. Licence to Practise - the introduction of a licensing system for teachers would result in increased administration for the General Teaching Council for England (“GTCE”) who will be operating the system. The overall costs of the policy will be met from within existing budgets through re-prioritising/making savings in other areas.
197. Family Courts - The press reporting family cases would have an impact on court staff who may be required to prepare the documents which the media would be allowed to see should an application be made and accepted. There may also be other associated tasks that court ushers and staff may need to carry out as a result of the proposed changes, such as listing possibly more direction hearings and preparing documentation for judges in more cases than currently is the case. Any additional cost of these provisions would be met from within existing budgets.
198. There are also provisions in this Bill which will impact on manpower within local authorities:
199. Home Education - new arrangements from April 2011 for registering and monitoring all children who are home-educated will require additional local authority professional and administrative officer time to carry out functions relating to the establishment and maintenance of the home education register; to carry out monitoring visits; and to deal with reviews and appeals. At present, local authorities are aware of around 20,000 home educated children. Although practice varies widely between local authorities, in most cases, some monitoring is already being carried out. It is estimated that the real number of home-educated children is between 25,000 and 30,000. Any additional burdens for local authorities will be funded. The Impact Assessment shows that this policy is likely to have a net financial benefit to the economy.
200. Parental satisfaction surveys - introducing a requirement on local authorities to survey the views of parents about local school provision may increase staffing requirements within local authorities, as detailed in the full impact assessment. Many local authorities already invite parental views as a matter of good practice to inform their strategic planning of high quality school places and to realise efficiencies. One of the purposes of trialling the duty in autumn 2009 is to get a better understanding of its resource implications. Subject to the outcomes of the trial, when fully operational, the Government currently estimates the total steady state cost to local authorities could be in the region of £1.2 million annually. Any additional burdens on local authorities will be funded by DCSF.
201. Pupil and Parent Guarantees - the redress mechanism that pupils and parents will be able to access if they are denied anything that they are entitled to expect by virtue of the Guarantees will be operated by the Local Government Ombudsman (LGO). It is anticipated that this will result in an increase in complaints to the LGO, and it is likely that more manpower will be needed to respond to those complaints. DCSF will agree the level of additional capacity needed with the LGO and provide the funding to deliver this.
SUMMARY OF THE IMPACT ASSESSMENT
202. The Bill is accompanied by a full impact assessment which is available through the Vote Office, in the House Libraries and on http://www.dcsf.gsi.gov.uk/childrenschoolsandfamiliesbill
203. This assessment provides an overview of the whole Bill and then analyses the separate provisions. In some cases there are no extra or specific costs. In other cases it has not been possible to monetise the benefits of the individual interventions, programmes or legislative changes proposed as they contribute to improving outcomes for children and young people but not in a way that can be measured in financial terms. In all, however, as the impact assessment demonstrates the benefits outweigh the costs.
COMPATIBILITY WITH THE EUROPEAN CONVENTION OF HUMAN RIGHTS
204. Section 19 of the Human Rights Act 1998 requires the Minister in charge of a Bill in either House of Parliament to make a statement before Second Reading about the compatibility of the provisions of the Bill with the Convention rights (as defined by section 1 of that Act).
205. Having considered the possible implications, the Secretary of State for Children, Schools and Families has made a statement saying that in his view the provisions of the Children, Schools and Families Bill are compatible with the Convention rights. There are some areas where it would be helpful to provide further comments for clarification, as follows.
Clauses 4 and 5: Home-school agreements
206. The Government has considered whether the requirement on the head teacher contained in these clauses to secure that parents sign home-school agreements, engages the Article 8 rights of the parents. It is satisfied, however, that as there can be no direct consequence for parents who do not sign, this Article is not engaged. Parenting orders under the CDA 1998 may engage Article 8 to the extent that they can require parents to attend residential courses. However, a court can only require such attendance to the extent that it is satisfied that any infringement of a parent’s right to family life under Article 8 which results is proportionate; and the Government considers that any infringement will be justified as necessary in a democratic society, and for the protection of others and proportionate to the aim pursued. The parenting order regime has been held by the courts to be compliant with Article 8 and although the provisions of clauses 4 and 5 add a requirement for a Magistrates’ Court considering whether to make such an order to take into account any failure of a parent to discharge their responsibilities under a home-school agreement, it makes no substantive change to the parenting order regime.
207. To the extent that a parenting contract (which is voluntary) may lead to an application for a parenting order, similar considerations may apply to a parenting contract. Likewise, however, the Government considers that this too would be compliant with the Convention Rights for the same reasons.
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