Clauses 11 to 14 Personal, Social, Health and Economic (PSHE) education

208.     These clauses provide for the introduction of PSHE into key stage 3 and 4 as part of the compulsory National Curriculum in both maintained schools and Academies, CTCs and CCTAs. PSHE will include what is presently “sex education” and will subsequently be “sex and relationships education” and the current parental right of withdrawal from sex education in section 405 of the EA 1996 will apply to it. Parents will not have, and do not currently have, a right to withdraw their children from teaching about biological reproduction as part of the science curriculum. The Government has considered the extent to which the parental right of withdrawal engages the rights of parents under Article 2 of the First Protocol to the ECHR; and the rights of children under the same Article and under Article 8. The Government considers that all of these rights are potentially engaged at various stages of a child’s education and that it is necessary to balance these rights appropriately. The Government considers that a right of withdrawal for parents up to the point at which a child attains the age of 15 properly satisfies a parental right pursuant to Article 2 of the First Protocol to have their child educated in accordance with their religious and philosophical convictions without infringing the rights of more mature children under Article 2 of the First Protocol to access this curriculum, and to have access to important health-related information.

209.     The Government considers that providing access to this information at the very least in the last year of compulsory education ensures that a child’s Article 8 right to a private life is not infringed, and properly reflects Article 12 of the UN Convention on the Rights of the Child to ensure that a child can express their own views and have them given due weight. It also reflects the accepted principle that parental rights dwindle as a child matures. The Government considers that it is acceptable and consistent with human rights principles to limit the parental right of withdrawal by reference to a child’s age.

Clauses 23 to 25 Licensing of teachers

210.     The Government does not consider that the establishment of a licensing scheme itself engages any of the Convention rights. The Government has considered, however, whether a refusal of a licence or a refusal to renew a license might engage Article 6 or Article 1 of the First Protocol to the ECHR.

211.     The effect of a decision to refuse, refuse to renew, or to withdraw a license to teach is intended (in regulations to be made under the clauses) to be that the teacher would not be able to teach unsupervised in maintained schools or Academies, or non-maintained special schools. Further, clause 23(1) inserts a new section 4C into the Teaching and Higher Education Act 1998 which will require the Secretary of State to make regulations providing for an independent appeal for teachers to a committee of the GTC. The Government considers that this is sufficient to satisfy the requirements of Article 6, but in any event, the decision of any GTC appeal panel would be open to judicial review in appropriate circumstances.

212.     The loss of a license to practise does not lead to the loss of a teacher’s professional status, and they can continue to teach under supervision (or at independent schools). It does not lead to the loss of any present legal entitlement or economic rights beyond an ability to hold a certain form of employment in future. On that basis, the Government does not consider that Article 1 of the First Protocol is engaged as the license cannot amount to a possession within the meaning of that Article.

Clause 26: Home education: England

213.     As noted in paragraph 112 above, the law does not presently require education at home to be regulated. The Government considers that sections 19A to 19I of the EA 1996 inserted by Schedule 1 will engage Article 2 of the First Protocol and Article 8, but that the way the registration scheme will be operated in practice will ensure that it is compatible with them. The scheme pursues a legitimate aim to ensure that home-educated children receive a suitable education and are safe and well.

214.     There is no absolute right for parents to educate their children at home, and the State may prevent home education if this would be contrary to a child’s wider educational interests or welfare. Requiring a child to be educated in a school in these circumstances may engage Article 2 of the First Protocol , but there is no infringement since the rights of parents are not absolute and cannot take precedence over those of their children.

215.     A requirement to register and for home education to be monitored will clearly engage the Article 8 rights of both parents and children but the Government considers that any interference with this right which results will be necessary and proportionate and pursue the legitimate aim of protecting the health of the child and the rights of others. Likewise, the limited sharing of information between local authorities which may also occur will also engage the Article 8 rights of parents and children, but will again be justifiable on the same basis.

216.     A refusal or revocation of registration will also engage Article 8, but again the Government considers that any interference will be justified and proportionate. Regulations made under the new sections will specify matters to which the local authority should or should not have regard in making decisions to refuse or revoke registration. And revocation of registration may take place only if an authority is satisfied of one of the specific matters listed in new section 19F of the EA 1996.

217.     The Government considers that a refusal of registration to a parent will not engage Article 6 as a parent’s rights under Article 2 of the First Protocol do not amount to a civil right within the meaning of Article 6. In any event there will be a right for parents to appeal against the refusal of registration to an independent panel set up for this purpose. Parents would also have the right to seek judicial review of any refusal of registration by the local authority and a right of complaint to the local government ombudsman.

Clauses 28 and 29: Supply of information requested by LSCBs in England and Wales

218.     The Government and Welsh Ministers have considered whether the new power of an LSCB to require a person or body to supply information to it, for the purpose of enabling or assisting it to perform its functions, engages the Article 8 rights of those whom it concerns. Although much of the information likely to be requested by an LSCB is likely to be anonymised and aggregated data, the Government and Welsh Ministers accept that to the extent that the information relates to an individual, Article 8 is engaged. However, the Government and Welsh Ministers are satisfied that any interference with Article 8 rights of individuals resulting from these powers is justifiable. The functions most likely to necessitate the disclosure of information relating to an individual are those relating to serious case reviews, and child deaths, where learning lessons and identifying areas of concern are intended to protect the rights and freedoms of others. Guidance issued to LSCBs will, also, emphasise the need to comply with Article 8.

Clause 30: Review by Chief Inspector of performance of LSCBs in England

219.     The new section inserted into the CA 2004 by this clause permits the Secretary of State to make regulations providing for the Chief Inspector to review LSCBs’ performance of specified functions. It also permits the regulations to require information to be shared with the Chief Inspector for the purposes of a review. To the extent that information about individuals is disclosed to the Chief Inspector in pursuance of such a power, Article 8 may be engaged- but the Government is satisfied that any interference which may occur is justifiable. The purpose of any review is likely to be connected to serious case reviews, and child deaths where learning lessons and identifying areas of concern are intended to protect the rights and freedoms of others.

Clause 31 Supervision of Youth Offending Teams etc

220.     The duty to cooperate with the Board imposed on YOTs by this clause, may include an obligation to share information with the Board. It is highly unlikely that information identifying an individual will be shared but where this is the case, Article 8 may be engaged. On the assumption that it is, the Government considers that any interference with that right can be justified and will be proportionate. The proposals pursue a legitimate aim as the information will only be shared for the purpose of assessment and making recommendations about the performance of YOTs in the carrying out of their statutory functions. This will contribute to the prevention of crime and disorder, and the protection of children’s health and morals. The Board itself will be required to act in a way compatible with the convention rights, in any event.

221.     It is conceivable that the power to direct a local authority in relation to the youth justice system contained in clause 31(3) might result in the termination of a contract between the local authority and a third party. To this extent, the rights of that third party under Article 1 of the First Protocol might be engaged. To the extent that they might be, however, any interference would be justified as pursuing the legitimate interest of the proper functioning of the youth justice system, with the aim of preventing crime and disorder and protection of children’s health and morals. Furthermore, any contract so terminated would be likely to provide a remedy for the contractor for early termination and even if it did not, the local authority would be required to secure the rights of the contractor under Article 1 of the First Protocol in any event and ensure any burden on the contractor was not excessive.

Clauses 32-41 Family Proceedings: attendance and reporting

222.     The clauses relating to attendance of the media at and increased reporting of family proceedings engage Articles 6, 8 and 10 ECHR. At present, the balance between Article 8 and 10 rights is very heavily in favour of the former: the reporting framework is heavily restricted and Article 8 protection of parties and witnesses is paramount. The aim of the Government in the present clauses is to rebalance the competing rights somewhat without compromising the Article 8 rights of those parties and witnesses which need protection.

223.     The Bill’s provisions will permit reporting by accredited media representatives of information relating to proceedings which they have attended acquired and acquired through attendance, subject to restrictions relating to information which identifies, or could lead to the identification of, individuals. They will also restrict disclosure of sensitive personal information, such as medical reports, or details of medical treatment. This information can only be reported with the permission of the court. All other information obtained will be publishable, unless the court considers that there is an identifiable risk of harm to a child’s or vulnerable adult’s welfare or a person’s safety, or possible prejudice to the interests of justice, and prohibits or places restrictions on publication.

224.     The Government considers that these clauses will ensure that where there is most risk to parties or witnesses from disclosure, their Article 8 rights will be protected by continued, automatic restrictions on reporting. In other cases, possible infringements of Article 8 will be addressed on a case by case basis. This will allow much greater reporting and scrutiny of the substance of cases than is now the case, and will better reflect the needs of Article 6 and 10.

225.     The Government is satisfied that the increased weight given to Articles 6 and 10 by these clauses is compliant with the Convention. Public scrutiny of and confidence in the operation of the courts is a vital consideration which should be given great weight. The Government is satisfied however, that the policy represented by these clauses of allowing the reporting of the substance of the case but preventing identification of persons, particularly children, concerned in proceedings, for life, continues to suitably reflect the Article 8 rights of key individuals.

COMMENCEMENT

226.     Commencement of the provisions in this Bill will be by order of the Secretary of State, with the following exceptions.

227.     Clause 27 (the Welsh Assembly measure-making power) and clause 43 (fees for pre-registration inspections of independent schools) will commence two months after Royal Assent.

228.     Clause 29 (supply of information requested by LSCBs in Wales) will come into force on a date appointed by the Welsh Ministers by order.

229.     Commencement of Part 2 of the Bill and Part 2 of Schedules 4 and 5 will be by order of the Lord Chancellor.

230.     Clauses 44 and 47-50 come into force on the day in which the Bill receives Royal Assent.

GLOSSARY OF TERMS AND ABBREVIATIONS