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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