Joint Committee On Human Rights Nineteenth Report


Appendices


Appendix 1: Letter to Jim Knight MP, Minister of State for Schools and Learners, Department for Children, Schools and Families, dated 20 December 2007

The Joint Committee on Human Rights is considering the human rights compatibility of the Education and Skills Bill. Having carried out an initial examination of the Bill, the Committee would be grateful if you could provide answers to the following questions concerning the human rights compatibility of some of the Bill's provisions.

Duty to participate in education or training

Chapter 1 requires young people between the ages of 16 and 18 to participate in education or training. Where a Local Education Authority (LEA) believes that a young person is failing to comply with his/her duty under Clause 2, the LEA may issue an attendance notice. It is a criminal offence for an individual to fail to comply with an attendance notice. An individual can appeal against the making of an attendance notice, its terms or their variation to an "attendance panel". The Explanatory Notes do not deal with this Clause, save to explain the reason why the Government chose to impose the primary duty on young adults themselves.

1.  Please explain why the imposition of a duty on pain of criminal sanction is necessary and proportionate to meet the Government's aim. What consideration was given to less intrusive alternatives to address the Government's aim, what were they and why were they rejected?

We note that Regulations may provide for the procedure on appeals and the powers of the attendance panel.

2.  Given the potentially serious consequences of non-compliance with the duty, why are the composition, appeal procedures and powers of the attendance panel not on the face of the Bill?

3.  What safeguards will be in place to ensure that the procedure leading to the imposition of an attendance notice or the recommendation to prosecute complies with Article 6 ECHR?

Attendance panels will be established by the LEA and chaired by someone who is not from the LEA. However, it is not clear whether there will be other members of the panel, and if so, whether they will also be non-LEA.

4.  How will the attendance panel be composed? Will the attendance panel satisfy the requirement for an independent and impartial tribunal in Article 6 ECHR?

Information disclosure

The Bill contains information supply and sharing provisions in Parts 1-4,[66] which raise potential human rights issues, notably the right to respect for private and family life. The Government has referred to some, but not all, of the information supply and sharing provisions in the human rights section of the Explanatory Notes. In particular, whilst the Explanatory Notes state generally that the provisions in Chapter 2 of Part 1 pursue the aim of economic well-being,[67] the Government does not explain specifically, in relation to each of the disclosure provisions, how each provision is both necessary and proportionate to the achievement of that aim. In addition, the Notes make no reference to the human rights compatibility or otherwise of Part 2[68] and, whilst accepting that Convention rights may be engaged under Part 4, state, without further explanation, that there would be no unjustifiable interference.[69]

5.  In relation to each and every information supply and sharing provision (in Parts 1 to 4), (a) what legitimate aim is sought to be protected, (2) are the provisions necessary to achieve the aim and (3) are the measures proportionate to that aim?

6.  In relation to each and every information supply and sharing provision, what specific safeguards will be in place to ensure their compatibility with Article 8 ECHR (the right to respect for private and family life)?

Part 3 permits the disclosure of identifying information by HMRC about an individual relating to his/her income, employment, other sources of income, income tax and tax credits or relating to a young person's benefits or training to the Secretary of State or other devolved authorities. A person commits an offence if s/he discloses information to another for a purpose not specified in Clause 73 and the information identifies an individual, or his/her identity can be deduced from the disclosure.[70]

Whilst the Explanatory Notes set out the aim (economic well-being) which the Government suggests will be achieved by these disclosures, no explanation is given of how the interference with an individual's private and family life rights under Article 8 ECHR is proportionate to that aim, simply stating that the powers will be "exercised in a way that is proportionate".[71]

7.  On what basis can the Government state, in advance, that the Part 3 powers will, in every case, be exercised proportionately?

8.  What safeguards will be put in place to ensure that no violations of Article 8 occur?

Parenting contracts and orders

On the application of an LEA, a Magistrate's Court may make a parenting order if it is satisfied that the young person is failing to meet his/her duty to participate and "the making of the order would be desirable in the interests of the young person's fulfilment of that duty."[72] A parenting order may require a parent to meet certain specified requirements and/or attend a counselling or guidance programme. A parent may appeal against the making of a parenting order to the Crown Court.[73]

The Government accepts that parenting orders engage Article 8, but considers that both interventions are necessary in a democratic society and in pursuance of the legitimate aim of the economic well-being of the country.[74]

9.  Given the potential for young people to contribute to the economic well-being of the country without necessarily participating in education or training, why does the Government consider that a blanket requirement to participate is both necessary and proportionate to that aim?

Independent educational institutions

Independent education institutions are required to register with the Chief Inspector[75] who may enter and inspect premises and inspect and take copies of records or documents where he has reasonable cause to believe that an offence (under Clause 80) is being committed or for the purposes of carrying out an inspection.[76]

10.  Are legally professionally privileged documents protected from seizure? If so, in order to assist compliance with Articles 6 and 8 ECHR, why does this protection not appear on the face of the Bill?

The Secretary of State may make regulations prescribing a number of matters in relation to the standards of independent educational institutions.

11.  Does the Government intend to publish draft Regulations, for the purposes of assisting Parliamentary scrutiny and debate, and if so, when? We should be grateful if you would provide the Committee with a copy of the draft Regulations, as soon as they are available.

The Regulations are intended to cover, amongst other things, the spiritual, moral, social and cultural development of students and the provision of information by independent educational institutions.

12.  Precisely what is intended to be achieved by a power to prescribe standards in relation to spiritual and moral development and information provision?

Religious worship in schools

The Bill proposes to amend the Education Act 1996 to allow Regulations to be made permitting sixth form students to opt-out of religious worship and for younger students to be withdrawn from religious worship by their parents in non-maintained special schools. The Regulations will also permit a child to be removed from religious education on the request of his or her parents. Whilst this Bill gives effect to one of the Committee's recommendations in its report on the Education and Inspections Bill[77] (namely to permit young people over the age of 16 to withdraw from collective worship), it does not deal adequately with the second of the Committee's concerns: the Committee previously suggested that children should be granted a right to withdraw from religious education and collective worship where they have sufficient maturity, understanding and intelligence to make an informed decision.[78]

13.  Does the Government intend to publish draft Regulations, for the purposes of assisting Parliamentary scrutiny and debate, and if so, when? We should be grateful if you would provide the Committee with a copy of the draft Regulations, as soon as they are available.

14.  Why does the Government not propose to permit children with sufficient maturity, understanding and intelligence to withdraw from religious education and collective worship? How is this consistent with respect for a child's right to freedom of thought, conscience and belief?

I would be grateful for a response by 15 January 2008.


66   Specifically Clauses 14, 15, 16, 17 and 115. Back

67   Explanatory Notes, para. 191. Back

68   Clauses 57, 61 and 62. Back

69   Explanatory Notes, para. 198. Back

70   Clause 74. Back

71   Explanatory Notes, para. 197. Back

72   Clause 35(3). Back

73   Clause 37. Back

74   EN, para. 195. Back

75   Clause 79. Back

76   Clauses 81 and 95. Back

77   Twenty-eighth Report of Session 2005-06. Back

78   Ibid, para. 2.4. Back


 
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