Legislative Scrutiny: Children, Schools and Families Bill; other bills

Legislative Scrutiny: Children, Schools and Families Bill; other bills - Human Rights Joint Committee Contents

Bills drawn to the special attention of both Houses

1 Children, Schools and Families Bill

Date introduced to first House

Date introduced to second House

Current Bill Number

Previous Reports

19 November 2009

HC Bill 61

None

Background

1.1 This is a Government Bill introduced in the House of Commons on 19 November 2009. The Bill received its Second Reading on 11 January 2010 and completed its Committee stage on 4 February 2010. Report stage is scheduled for 23 February 2010. The Secretary of State for Children, Schools and Families, the Rt Hon Ed Balls MP, has made a statement of compatibility under s. 19(1)(a) of the Human Rights Act 1998.

1.2 We wrote to the Secretary of State on 14 January 2010 asking a number of questions about certain aspects of the Bill with human rights implications. We received a full response, for which we are grateful, from Vernon Coaker MP, Minister of State, dated 2 February 2010. That correspondence is published with this Report.

1.3 We have also been assisted by a number of representations[1] about this Bill which we received in response to our call for evidence in January, in which we identified the human rights issues that we were likely to be prioritising in our legislative scrutiny work in what will be a shorter than usual parliamentary session. We have considered these carefully and are grateful to all those who took the trouble to submit evidence to us.

Purposes of the Bill

1.4 The Bill contains a wide range of measures, the most relevant of which for our purposes are the introduction of a system of "guarantees" for parents and pupils; the introduction of mandatory sex and relationships education in schools; provision about publication of information relating to family proceedings; and the introduction of a licensing scheme for teachers.

Explanatory Notes

1.5 The section of the Explanatory Notes to the Bill dealing with its compatibility with the European Convention on Human Rights provides, in relation to certain aspects of the Bill, some helpful clarification of the Government's reasons for its view that the Bill is ECHR compatible.[2] There are some notable omissions from the analysis (it does not deal at all, for example, with the important human rights issues which arise in the teaching of sex and relationships education in faith schools[3]) and the analysis of the human rights issues which arise in connection with the introduction of a new licensing regime for teachers[4] is cursory to say the least.[5]

1.6 However, we also received from the Department, prior to the Bill's introduction, a human rights memorandum, setting out in more detail the Government's consideration of the main human rights issues relating to the Bill.[6] This was sent in response to our call for evidence on the Government's Draft Legislative Programme in July 2009.[7] The Department did the same in relation to the Apprenticeships, Skills, Children and Learning Bill in the last session, sending a human rights memorandum in response to our call for evidence on the Government's Draft Legislative Programme prior to the Bill's introduction. In our report on that Bill we welcomed the human rights memorandum sent to us by the Department before the publication of the Bill and we encouraged other departments to follow the same practice in future.[8] We regret to report that, during this Session, no other Department has done so.

1.7 Officials in the Bill team also made themselves available to meet with our Legal Adviser and Lords Clerk in December 2009 to discuss some of the human rights issues raised by the Bill. At that meeting further information was identified which we would find useful in our scrutiny of the Bill and on 15 January 2010 a further letter was sent responding in detail to some of the questions raised at the meeting with our staff.[9] As we have indicated above, we also received a detailed letter from the Minister on 2 February 2010 in response to our detailed queries about the Bill.

1.8 We welcome the Department's degree of engagement with our human rights scrutiny of this Bill. Although the comprehensiveness and quality of the human rights analysis in the Explanatory Notes is open to criticism, the Department's subsequent proactive provision of information, its preparedness to make officials available to answer questions and its full response to requests for further information have all been of considerable assistance to the Committee in its scrutiny of the Bill for human rights compatibility. We commend the Department's practices to other departments as examples of best practice.

Significant human rights issues

(1) ENFORCEABLE ENTITLEMENTS FOR PARENTS AND PUPILS

1.9 The Bill requires the Secretary of State to issue documents setting out pupil and parent "guarantees": a set of specific entitlements which pupils and parents are entitled to expect from their school.[10] The guarantees are intended to "embody the most important aspects of what parents and pupils can rightly expect from schools."[11] The Secretary of State must define the specific entitlements in the pupil and parent guarantees with a view to realising various pupil and parent "ambitions" which are listed in the Bill.[12]

1.10 The guarantees may impose requirements on local authorities, governing bodies and head teachers,[13] and are intended to be enforceable through certain enforcement mechanisms. The fact that the guarantee documents are able to impose mandatory requirements on local authorities, governing bodies and teachers means that "in principle the guarantee documents will be capable of providing entitlements to parents and pupils that would, in theory at least, be enforceable through judicial review."[14]

1.11 However, one of the intentions behind the guarantees documents is to avoid litigation by offering parents and pupils an accessible, cost-effective and swift method of redress. Pupils and parents will be entitled to complain to the Local Government Ombudsman about failure to meet the guarantees.[15] The Ombudsman is empowered to investigate such complaints, report and make recommendations, including, in the case of local authorities, recommendations of financial compensation. It is envisaged that judicial review of the Local Government Ombudsman will be in principle available.

(a) Giving legal effect to economic and social rights

1.12 This part of the Bill raises again an important human rights issue which we have recently considered in detail in our reports on A Bill of Rights for the UK?[16] and on the Child Poverty Bill[17]: whether economic and social rights such as the right to education[18] can be given some legal effect by being made the subject of specific individual entitlements, with some means of redress, without subverting democratic accountability for public expenditure.

1.13 In our report on the Child Poverty Bill we welcomed that Bill as a human rights enhancing measure[19] because it provides a mechanism for the progressive realisation of children's right to an adequate standard of living.[20] We welcomed in particular the use of the model of "target-setting legislation" to bring about the progressive realisation of that important economic and social right.[21] As our predecessor Committee noted in its Report on The International Covenant on Economic, Social and Cultural Rights,[22] progressive realisation is one of the principal obligations on the State under Article 2(1) ICESCR:

"Each State Party to the present Covenant undertakes to take steps … to the maximum of its available resources, with a view to achieving progressively the full realisation of the rights recognised in the present Covenant by all appropriate means, including particularly the adoption of legislative measures."

1.14 Progressive realisation, however, is not the only obligation on the State under the ICESCR. States are also under an obligation to guarantee a minimum core content in relation to the rights in the Covenant. As our predecessor Committee also pointed out,[23] in General Comment No. 3 on the Nature of State Parties' Obligations under the Covenant, the UN Committee on Economic, Social and Cultural Rights (the international monitoring body for the treaty) said: [24]

"the Committee is of the view that a minimum core obligation to ensure the satisfaction of, at the very least, minimum essential levels of each of the rights is incumbent upon every State party."

1.15 We note the similarity between the idea in human rights law that there is a "minimum core obligation" under the ICESCR to ensure minimum essential levels of each of the economic and social rights in the Covenant and the work of the Public Administration Select Committee on Public Service Guarantees.[25] In a series of reports, the Public Administration Select Committee has set out the case for a clear and precise statement of entitlements to minimum standards of public services, or "public service guarantees". The public services deliver many of the rights, such as health and education, found in the ICESCR. Setting out minimum levels of entitlement to such service provision in the form of Public Service Guarantees will therefore help to fulfil the UK's "minimum core obligation" under that human rights treaty to ensure minimum essential levels of rights such as the right to education.

1.16 In view of this significant human rights dimension,[26] we asked the Government about the extent to which the new proposed pupil and parent guarantees might contribute to the fulfilment of the UK's obligations under the ICESCR, and whether the Government's recent more rights-oriented approach to the delivery of public services had been influenced by the work of the Public Administration Select Committee on Public Service Guarantees.

1.17 The Government responded that the creation of the Pupil and Parent Guarantees is "an example of the way the Government promotes social and economic rights across a range of public services."[27] It explains that, as with entitlements to healthcare, these are not generally referred to as rights because they are not generally justiciable in the way in which ECHR rights can be enforced in litigation by individuals against public authorities (although it is acknowledged that some of the Pupil and Parent Guarantees will be so enforceable). However, the Government disavows any suggestion that the Guarantees are a way of giving legal effect to constitutionally recognised economic and social rights: "as with similar provisions in the Child Poverty Bill and areas of health policy, they pursue more specific policy goals rather than fulfilling an overarching constitutional purpose."

1.18 The Government was more positive about the connection with the work of the Public Administration Select Committee on Public Service Guarantees. The Minister pointed out that in September 2009 Liam Byrne had written to PASC saying that the Government's recent shift from an approach to public services based on targets and central direction to one where individuals have service entitlements[28] was a shift which reflected PASC's overall approach to Public Service Guarantees.

1.19 We welcome the Government's embrace of legally enforceable guarantees to a minimum set of entitlements in education in this Bill. In our view this is capable of giving effect to the minimum core obligation which human rights law places on the UK to ensure a minimum essential level of provision for the right to education. This indicates a continued and welcome evolution in the Government's position since 2008 when, in its evidence to our Bill of Rights inquiry, it was distinctly unenthusiastic about any legally enforceable social or economic rights. For the reasons we have explained, an approach based on individual service entitlements is likely to improve the UK's compliance with its human rights obligations under the ICESCR.

1.20 To ensure that the human rights dimension of the pupil and parent guarantees is not overlooked, we recommend that the Secretary of State ensures that the pupil and parent guarantees he issues fully reflect the relevant international human rights standards concerning the child's right to education (including Articles 28 and 29 of the UNCRC, as interpreted by the UN Committee on the Rights of the Child[29], and Article 13 ICESCR, as interpreted by the UN Committee on Economic, Social and Cultural Rights) and the rights of parents in relation to their children's education. We also recommend that when drawing up the pupil and parent guarantees the persons the Secretary of State consults under clause 2(2) of the Bill include children, in accordance with Article 12 UNCRC, the Children's Commissioners, and appropriate children's and parents' organisations with expertise in education.

(b) The right to a fair hearing in determining whether a guarantee has been breached

1.21 The Explanatory Notes to the Bill do not address whether the procedures available for complaining about any infringement of the minimum entitlements satisfy the right to a fair hearing, whether at common law or under human rights treaties. The Government's human rights memorandum, however, states that, even though the guarantees can impose mandatory requirements on local authorities, governing bodies and head teachers, the Department does not consider that a parent's or pupil's rights under Article 6 ECHR are engaged by these provisions on pupil and parent guarantees.[30] The reason given for this is that, in the Government's view, the entitlements provided by the guarantees are unlikely to amount to "civil rights" within the meaning of Article 6 ECHR, citing a decision of the old European Commission of Human Rights, Simpson v UK.[31]

1.22 The Minister's response to our queries explains the Government's reasoning more fully. It characterises the subject matter of the guarantees, which elsewhere are described as "minimum entitlements", as "entitlements to expect" and "self-evidently, benefits within the school system."[32] The Government asserts that the European Court has consistently held that the right to education, and elements of it, are not 'civil rights' within the meaning of Article 6 ECHR. It relies on the Simpson case as being "still good law" and notes that it has been relied upon in the domestic context in several cases[33] in which the English courts also found that there was no private law right to education of the sort that would engage Article 6. To the extent that rights are conferred, it is argued, they are clearly public law rights only. Financial compensation is not available through the complaints process against head teachers or governing bodies and even in relation to local authorities it can only be "recommended" by the Local Government Ombudsman.

1.23 Even if Article 6 applies, the Government argues, the Bill's provision of an effective form of redress, both through the Ombudsman and, if necessary, through judicial review, is sufficient to satisfy the requirements of the Article.[34]

1.24 We do not share the Government's confidence that Article 6 ECHR does not apply to "entitlements" which derive their status as such from mandatory requirements imposed on public authorities by statute. The trend in the Strasbourg case-law on the applicability of Article 6 is to move away from the approach relied on by the Government, that Article 6 ECHR does not apply merely because a right arises in a public law context. Simpson is a decision of the European Commission and now more than 20 years old. More indicative of today's approach by the Strasbourg Court is the 2008 decision in Arac v Turkey, in which the Court considered that the applicant's right of access to an institution of higher education was a civil right and that Article 6(1) therefore applied.[35] Nor is the position of the English courts on the applicability of Article 6 ECHR in the education context as clear as the Government asserts. In a Court of Appeal decision which post-dates the case relied on by the Government, the court made the following assumption before going on to consider the substance of the Article 6 argument being made;

"As to the applicability of Article 6, there may be difficulties, in the light of the present jurisprudence of the Strasbourg Court, in holding that a school exclusion appeal panel is a body which determines a pupil's civil rights, whether to education or to reputation. … But let us make the perfectly tenable assumption … that domestic human rights law, and arguably the ECHR's jurisprudence too, will today regard at least the right not to be permanently excluded from school without good reason as a civil right for Article 6 purposes."

1.25 In view of these more recent developments in the case-law concerning the scope of "civil rights" in Article 6 ECHR, we take the view that Article 6 ECHR may well apply to those entitlements in the pupil and parent guarantees which are underpinned by mandatory requirement on local authorities, governing bodies or head teachers. If we are correct about that, we do not accept that the availability of a complaint to the Local Government Ombudsman followed by judicial review of the Ombudsman is sufficient to satisfy the requirement of Article 6 that there be access to an independent and impartial court or tribunal of full jurisdiction in the determination of one's civil rights. Provision would need to be made for an appeal to an appropriate court or tribunal such as the Health, Education and Social Care Chamber of the First Tier Tribunal.

(2) MANDATORY SEX AND RELATIONSHIPS EDUCATION

(a) Children's right of access to health information

1.26 The Bill provides for mandatory sex and relationships education[36] with a parental right to opt out the child if the child is under the age of 15.[37]

1.27 Children have a well established right in human rights law of access to information which is essential for their health and development.[38] This is most specifically recognised in the UN Convention on the Rights of the Child, which has been interpreted by the UN Committee on the Rights of the Child to mean that:[39]

Adolescents have the right to adequate information essential for their health and development … It is the obligation of States parties to ensure that all adolescent girls and boys … are provided with, and not denied, accurate and appropriate information on how to protect their health and development and practise healthy behaviours. This should include information on … safe and respectful social and sexual behaviours.

1.28 Given that the UK has one of the highest rates of teenage pregnancy in Europe, and the recent increase in the number of sexually transmitted infections in under 16s,[40] we regard the provision of mandatory sex and relationships education and the removal of the parental right to withdraw children aged 15 or above as significant human rights enhancing measures, for the reasons given in the explanatory material accompanying the Bill[41]. The fact that all children will in future be guaranteed a minimum of one year's sex and relationships education before they reach the age of consent (16), significantly enhances the right of children and young people to be provided with important information necessary to their sexual health and personal development under Articles 8 and 10 ECHR and Article 2 of Protocol 1 ECHR, and their right under Article 12 of the UN Convention on the Rights of the Child to have their views taken into consideration. The measure gives effect to a longstanding recommendation of the UN Committee on the Rights of the Child that health education should form part of the school curriculum.[42]

1.29 However, the continued provision of a parental right of withdrawal from sex and relationships education raises questions about the Bill's compatibility with the rights of children and young people detailed above, while the limitation of the parental right of withdrawal to those under 15 also raises issues concerning the right of parents to respect for their religious and philosophical convictions in the education of their children (Article 2 Protocol 1).[43] Making sex and relationships education compulsory also raises starkly the question whether it is compatible with the rights of children not to be discriminated against to allow faith schools to teach as part of those subjects the views of their faith on issues such as homosexuality, marriage, family structures, abortion and contraception. We consider each of these issues below.

(b)The right of parental withdrawal

1.30 The ECHR requires the State to respect the right of parents to ensure education and teaching of their children in conformity with their own religious and philosophical convictions.[44] This is not an absolute right and it does not entitle parents to withdraw their children from elements of the curriculum to which they object. In an early case called Kjeldsen v Denmark, the European Court of Human Rights rejected the argument of a group of Christian parents that the provision of compulsory sex education in state schools was a breach of their right to ensure the education of their children in conformity with their religious and philosophical convictions.[45] The Court held that there was no violation of the parents' rights because the intention of the sex education was to impart knowledge objectively and in the public interest, and the education was conveyed in a "neutral, objective, critical and pluralistic way."

1.31 It is clear that the issue of sex and relationships education in schools and whether there should be a right of withdrawal from that education, is a controversial issue. The full range of views was represented in written evidence to us. The Family Education Trust argued against any change to the right of parental withdrawal. Marie Stopes International argue against any right of parental withdrawal and CRAE pointed out that more than one hundred NGOs called for the removal of the right of parental withdrawal in a submission to the UN Committee on the Rights of the Child in 2008. Brook and Stonewall both welcome the Bill's reduction of the right to withdraw to those under 15, but do not indicate in their submissions whether they would prefer to go further. Our task in this debate is to make an assessment of what the relevant human rights standards require.

1.32 The explanatory material which the Government has supplied shows that the Government was clear that the present law, which permits parents to withdraw their children from sex education until their 19^th birthday, is unsustainable on human rights grounds. This is in light of ECHR case-law on a child's right to respect for their private life under Article 8 ECHR and the principles of the UN Convention on the Rights of the Child, in particular Article 12 which entitles a child to be able to express their own views and to have them given due weight.

1.33 However, the Government intends to maintain a partial right of withdrawal for parents in relation to the teaching of sex and relationships education to their children. It says that it aims to achieve an acceptable balance between the competing rights of both parents and children, and to balance sincerely held but widely divergent views on the subject. 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.[46]

1.34 We welcome the Government's acceptance, in principle, that as a child matures the child must be accorded greater rights to determine for themselves what is in their interests and to make decisions about their own private lives with the necessary information to do so. This is the basis on which we have recommended in the past that the right to withdraw from collective worship and religious education be exercisable not by parents but by children of sufficient maturity and understanding to be able to make that decision for themselves. The Government has not previously gone so far in accepting the principle that parental rights dwindle as a child matures, refusing, for example, to allow children to opt out of religious education or collective worship until they are in the sixth form.[47]

1.35 We question, however, the justification for limiting the parental right of withdrawal by reference to age rather than by reference to the child's maturity and understanding. In other closely related contexts, it is well established that parents' rights to control their children are limited by the child acquiring sufficient maturity and understanding to be able to take their own decisions on certain matters (known as "Gillick competence", or "Fraser competence" after the House of Lords decision which recognised the concept). For example, in 2006 the High Court concluded that once a young person was of sufficient maturity and understanding to reach their own decisions on matters such as abortion, then the parents' right to be notified under Article 8 ECHR does not continue.[48] A girl under the age of 15 who is of sufficient maturity and understanding ("Gillick or Fraser competent") to reach her own decisions about contraception, abortion and other matters concerning her sexual health is able to obtain advice and treatment from medical professionals on those matters without parental notification or consent. In its human rights memorandum, the Government "accepts that parental rights exist primarily for the protection of the child and that parental views, once a child is mature, cannot override the right of the child to information necessary to their health and development if such information is provided in a balanced and pluralistic way."[49]

1.36 We therefore asked the Government for its justification for allowing the parents of such a "Gillick competent" girl to veto her access to the important health-related information she needs to make informed decisions about her sexual health. The Government's answer[50] is that limiting the parental right of withdrawal from sex and relationships education by reference to the Gillick criterion is "not … in practice, particularly workable." The justification appears to be that very different considerations arise when considering medical treatment for a young person (which may be urgent and essential for their continued health and well-being) and considering access to a statutory curriculum which provides some information and education about long-term health, but which may have no immediate relevance to the individual. A distinction is drawn between the personalised nature of medical consultation and treatment on the one hand, which may make it eminently practical and reasonable for a child to have early access to information and treatment if needed, and the less individualised roles of schools and teachers on the other. The Government does not consider that schools and teachers will want, or should be given, the responsibility of making such individualised assessments of capacity in respect of their pupils. In addition, if schools were given the responsibility of making such assessments in relation to their pupils, the Government is concerned that it would expose them to a significant risk of litigation from parents who do not accept the school's assessment of a child's competence, which would lead to unacceptable uncertainty. An amendment to the Bill to limit the parental right of withdrawal by reference to Gillick competence rather than age is therefore not something that the Government is prepared to consider "at this time."

1.37 We have considered carefully but are not persuaded by the Government's justification for the legal disparity between a child's right of access to medical treatment concerning their sexual health and their right of access to education in order to obtain information and understanding about the same subject. We do not see any relevant distinction in principle, for these purposes, between the nature of medical treatment on the one hand and education on the other. In practice, teachers and schools frequently have to make individualised assessments about the children in their care, including about their capacity. The risk of litigation, always present in relation to matters on which views widely diverge, cannot be eliminated but is not in our view a significant risk given that litigation to the highest court has already established the legal concept of Gillick or Fraser competence which is now well established and widely understood. Nor should the task of having to make individualised assessments of capacity be unduly burdensome on schools. On current figures[51] only 0.04% of children (about 4 in every 10,000) are withdrawn from sex and relationships education by their parents and while it is possible that these figures may rise when the subject becomes mandatory, schools will still only be required to make an individualised assessment of capacity in those cases where a parent seeks to exercise their right of parental withdrawal in relation to their child under 15 but the child disagrees and prefers not to be withdrawn. We are not persuaded that this will cause schools the "significant inconvenience" that the Government fears. In our view, any inconvenience to schools can be minimised by drafting a law which would enable schools to work from a rebuttable presumption that all children are Gillick or Fraser competent for these purposes at the age of 15, but require them to consider on its merits those exceptional cases where there is a divergence of view between a child under the age of 15 and their parents.

1.38 We consider that, ranged against the arguments put forward by the Government, there are real human rights concerns about maintaining a disparity between the age at which a child can access medical treatment from their doctor without parental consent or notification in relation to such important matters such as contraception, sexually transmitted disease and abortion and the age at which they can access information about these subjects from their schools without parental veto. Moreover, we consider that this issue is of particular importance for girls, for whom the personal price of insufficient access to information about sex and relationships is likely to be higher than for boys.

1.39 In our view, the parental right of withdrawal should be limited by reference not to a child's age, but to the well-established and widely understood concept of "Gillick or Fraser competence", that is, whether he or she is of sufficient maturity and understanding to reach their own decisions on the matter. We recommend that clause 14 of the Bill be amended in a way which leaves 15 as the presumptive age of Gillick or Fraser competence for these purposes but which provides for an exception from the parental right to withdraw where a child under the age of 15 is of sufficient maturity and understanding to reach their own decisions on sex and relationships education. The following wording is intended to give effect to this recommendation.

Page 15, line 37, clause 14, in section 405 of EA 1996, after "15" insert:

"unless the school is satisfied that the pupil is of sufficient maturity and understanding to make his own decision on the matter."

1.40 We also asked the Government whether it has conducted any analysis of what proportion of children withdrawn from sex and relationships education are girls and what proportion boys, and whether this is regarded by the Government as relevant to its equality impact assessment of the proposal. The Government replied that the OFSTED report which is the source of the figures for parental withdrawal does not contain any gender breakdown of the figures, nor do the local authority data on which OFSTED's own figure was based.[52] It is therefore not possible to say which sex is more affected by the right of withdrawal. The Government has asked OFSTED to look again at any underlying statistics they may have and to provide any further useful information if it is available. We are grateful for this offer but in our view the risk of a differential impact on girls is sufficiently high to warrant more proactive investigation of the issue by the Government as part of its equality impact assessment of the measure. In view of the more serious consequences for girls as a result of lack of proper information and education, the question of whether the right of parental withdrawal from sex and relationships education is more often exercised in relation to girls than boys is highly relevant to any proper assessment of the justification for the right of parental withdrawal. We recommend that the Government undertake the necessary research to ascertain the respective proportion of boys and girls who are withdrawn from sex and relationships education by their parents, and conduct a proper equality impact assessment of the measure in light of that information.

(c)Sex and relationships education in faith schools

1.41 Making sex and relationships education a part of the National Curriculum, and therefore mandatory in maintained schools, raises an important and familiar human rights issue: how to reconcile the competing rights, on the one hand, of faith schools to religious freedom[53] and, on the other hand, of pupils to be treated equally and with dignity and with proper respect for their private and family life. The issue arises because a number of faiths include views on the subject of sex and relationships which come into conflict with claims by others to be treated equally and with respect for their dignity and private and family life.

1.42 The Macdonald review of PSHE said that faith schools would be allowed to deliver PSHE lessons in line with the "context, values and ethos" of their religion, and this was accepted by the Government. Before the Bill was published the Secretary of State for Children, Schools and Families was quoted in the press to much the same effect: "You can teach the promotion of marriage, you can teach that you shouldn't have sex outside of marriage, what you can't do is deny young people information about contraception outside of marriage. … The same arises in homosexuality. Some faiths have a view about what in religious terms is right and wrong - what they can't do though is not teach the importance of tolerance."[54]

1.43 The Bill provides that the teaching of PSHE (which includes sex and relationships education) must comply with three principles:[55]

(1) that information provided in the course of providing PSHE should be accurate and balanced;

(2) that PSHE should be taught in a way that:

(a) is appropriate to the ages of the pupils concerned and to their religious and cultural backgrounds, and also

(b) reflects a reasonable range of religious, cultural and other perspectives.

(3) that PSHE should be taught in a way that:

(a) endeavours to promote equality,

(b) encourages acceptance of diversity, and

1.44 In view of the express provision in the Bill that PSHE should be taught in a way that is "appropriate to the religious and cultural backgrounds of the pupils concerned",[56] and the high profile reassurances that were being given by ministers in the media to faith schools, we asked whether it is the Government's intention that faith schools should be free to teach that homosexuality, contraception and sex outside marriage are wrong, sinful or immoral.

1.45 The Government's response is, in effect, that faith schools are to be permitted to teach sex and relationships education in accordance with their particular ethos, but "without compromising the other principles".[57]

"… it is our intention that schools be permitted … to teach in a manner that is 'appropriate to the … religious and cultural backgrounds' of pupils, and in that way be permitted to teach the views of their own faiths on a variety of topics, including homosexuality, abortion and contraception. However, any such teaching will also continue to have to comply with the other principles too - and these include requirements that material presented is accurate and balanced, and that teaching reflects a variety of views (including other faith views) and promotes equality and diversity."[58]

1.46 As the Government stated in the debates on the Equality Bill about the exemption of the curriculum from the prohibitions on discrimination, its intention is that faith schools will be able to teach the tenets of their faith including the views of that faith on sexual orientation and same-sex relationships. What they cannot do, however, the Government says, is present these views in a hectoring, harassing or bullying way that may be offensive to individual pupils or single out any individual pupils for criticism. Faith schools will not be able to suggest that their own views are the only valid ones, and they must make clear that there is a wide range of divergent views. It is said that the requirements of the other "principles" with which the school must comply will ensure this. In the Government's view, if their beliefs are explained in an appropriate way in an educational context that takes into account guidance on sex and relationships education and religious education, then schools should not be acting unlawfully.

1.47 We welcome the approach of making explicit on the face of the Bill the need to ensure that the teaching of PSHE, including sex and relationships education, must comply with certain basic principles, and that those principles include accuracy, balance, objectivity, pluralism, equality and diversity. These are all principles with a foundation in human rights law and we approve in principle of the creation of a detailed statutory scheme designed to give effect to those principles in a context in which different rights inevitably come into conflict and, as the Government rightly says, difficult balances have to be struck between sincerely held but widely divergent views. This is much to be preferred to the approach we often criticise, of conferring wide discretions on decision-makers and arguing that the provision is compatible with human rights because s.6 of the Human Rights Act requires the decision-maker to exercise the power compatibly with the ECHR.

1.48 However, while we approve in principle of the Bill's attempt to give effect to human rights principles by structuring the discretion of governing bodies and head teachers, we do not share the Government's confidence that "there is no reason to suppose that any pupil or gay parent of any pupil will have cause to be concerned about discrimination that would affect or infringe their right to a private life and their right not to be denied education." Our concern remains essentially that which we have consistently expressed in our earlier reports on the Sexual Orientation Regulations and the Equality Bill:[59] the risk that, so long as the content of the curriculum is exempted from the duty not to discriminate, and so long as harassment on grounds of sexual orientation is not prohibited in schools, children who are gay themselves, or are the children of a gay couple (whether biological or adopted), or are the child of a single parent, or divorced parents, or unmarried parents, will be subjected to teaching that their sexual orientation or that of their parents, or their family arrangements, are sinful or morally wrong. Exposure to such teaching, in a classroom setting, is in our view an interference with the child's right to respect for their private and family life, discriminatory and an affront to their dignity.

1.49 We are not persuaded that the principles in the Bill will prevent such interferences with pupils' human rights from arising. It seems to us that the Government's response to our query invokes abstract principles which will clearly be in tension without explaining how they will be reconciled in practice. Experience shows that this is not a problem that can be wished away. It requires clarity in the legal framework and firm leadership about precisely what is and what is not permitted by the standards of human rights law. As we have pointed out in previous reports, it is the content of the curriculum (the teaching that certain orientations or lifestyles or family arrangements are objectively wrong or sinful), not just its presentation, that gives rise to the risk that children's human rights will be infringed.

1.50 We welcome the Government's explicit acceptance that the teaching of sex and relationships in faith schools must present material that is accurate and balanced, must reflect a variety of views, must not present that faith's views as the only valid views, and must promote equality and diversity. This goes some way to addressing concerns that we have expressed in previous reports about the effect of the curriculum on the human rights of some pupils in faith schools. As currently drafted, however, we are concerned about the effect of the principle in the Bill that PSHE be taught in a way that is appropriate to the religious and cultural backgrounds of the pupils, which is intended to allow faith schools to teach sex and relationships education in accordance with their ethos. In our view, in the absence of provisions in the Equality Bill which subject the content of the curriculum to the prohibitions against discrimination, and protect pupils from harassment on grounds of sexual orientation, that provision in the Bill will lead in practice to teaching as part of PSHE which is incompatible with the rights of children who are gay themselves, or the children of a gay couple, or whose parents are not married, to respect for their private and family life (Article 8 ECHR) and not to be discriminated against in their enjoyment of that right and their right to education on grounds of sexual orientation, birth or other status (Article 14 ECHR in conjunction with Article 8 and Article 2 Protocol 1). In the same way that religious views on evolution are not appropriate in science lessons, we recommend that guidance to schools with a faith ethos make clear that when communicating value judgments about lawful sexual behaviour, these should be limited to saying that the school's religion regards something as sinful or morally wrong and not teach that it is sinful or morally wrong.

1.51 The Bill envisages that the Secretary of State shall issue guidance to local authorities, governing bodies or head teachers about the exercise of their functions.[60] Such guidance will in practice play an important part in ensuring that PSHE is taught in a way which does not give rise to breaches of children's right not to be discriminated against on grounds such as sexual orientation, birth or the marital status of their parents. We welcome the Government's publication of updated guidance on Sex and Relationships Education on 25 January 2010 and we urge parliamentarians to give it careful attention to ascertain how the Government propose to guide schools about how to reconcile in practice the tension between the principle that PSHE should be taught in a way that endeavours to promote equality and encourages acceptance of diversity and the principle that it should be taught in a way that is appropriate to the religious and cultural backgrounds of the pupils concerned.

(3) LICENSING TEACHERS

1.52 The Bill makes provision for the Secretary of State to introduce a licensing scheme for teachers.[61] If they are refused a licence to practise, or a renewal of their licence, this would prevent them from teaching unsupervised in maintained schools and Academies. The Government's view is that the establishment of a licensing scheme for teachers does not engage any of the Convention rights.[62]

(a) The right of qualified teachers to practise their profession

1.53 The Government does not consider that the right to peaceful enjoyment of possessions in Article 1 Protocol 1 is engaged because the refusal or withdrawal of a teacher's licence to practise does not lead to the loss of a teacher's professional status, or to the loss of any present legal entitlement or economic rights beyond an ability to hold a certain form of employment in future. It points out that the teacher could still continue to teach, albeit under supervision, or could teach at independent schools. The Government therefore does not consider that a licence will be a 'possession' within the meaning of Article 1 Protocol 1 ECHR.[63]

1.54 We asked the Government for a more detailed explanation of its view that the introduction of a system of licences to teach does not engage teachers' right to earn a living practising their profession in Article 1 Protocol 1 ECHR. We also asked whether the Government agreed that, for a qualified teacher, not being able to teach unsupervised in a maintained school or Academy is a very significant restriction on their ability to practise the profession for which they have trained and qualified.

1.55 The Government agreed that this was a significant restriction, but maintained its view that a teacher's right to earn a living practising their profession does not constitute a "possession" for the purposes of Article 1 Protocol 1.[64] It argues that no present legal entitlement or ownership is conferred by virtue of being a qualified teacher: there is no absolute right to future income earned practising his or her profession. Being professionally qualified to teach does not give rise to any enforceable claim, it merely puts the teacher in a position to earn future income by obtaining suitable employment.[65]

1.56 In our view the Government's approach to what constitutes a "possession" for the purposes of Article 1 Protocol 1 is unnecessarily restrictive and does not reflect the case-law of the European Court of Human Rights. It is correct that Strasbourg jurisprudence makes clear that unearned future income, to which no enforceable claim exists, is not a possession for the purposes of Article 1 Protocol 1. However, it has also held that the right to practise a profession is akin to a private right of property and therefore falls within the scope of Article 1 Protocol 1. In Van Marle v The Netherlands, for example, the European Court of Human Rights considered a complaint by some Dutch accountants who had practised as such for some years before a new statute required them to seek registration if they wished to continue to practise.[66] The Dutch Government argued that Article 1 Protocol 1 did not apply because the accountants had nothing which could be classified as a possession within the meaning of that Article. The Court rejected that argument, holding that the accountants' right to practise their profession could be likened to the right of property and was therefore a "possession" within the meaning of Article 1 Protocol 1.[67] The Court also held that there had been an interference with the accountants' right to peaceful enjoyment of their possessions because the refusal to register them as certified accountants under the new statutory scheme "radically affected the conditions of their professional activities and the scope of those activities was reduced."[68]

1.57 We can see no distinction in principle between qualified teachers, who will be affected by this Part of the Bill, and the accountants in the Van Marle case. Qualified Teacher Status, for which teachers must train and pass professional exams, gives teachers the right to practise their profession as a teacher. That is clearly a right which qualifies as a "possession" for the purposes of Article 1 Protocol 1. The proposed licensing scheme, which the Government accepts may impose significant restrictions on a qualified teacher's right to practise their profession, clearly constitutes an interference with that possession. The licensing scheme therefore requires justification under the second paragraph of Article 1 Protocol 1.

(b) Proportionality of the interference with teachers' right to practise

1.58 The Government argues that, even if teachers' right to practise their profession does amount to a "possession" for the purposes of Article 1 Protocol 1, the interference with that possession by the new licensing regime would be justifiable as a proportionate measure with the legitimate aim of improving the quality of teaching which children and young people receive.[69] Alongside the new regime for licensing teachers, the Government is also introducing measures to give teachers and head teachers an entitlement to Continuing Professional Development.

1.59 The Bill itself provides little information on which to base a judgment about the proportionality of any likely interference: the provisions in this part of the Bill are skeletal. The circumstances in which a licence may be granted or refused, renewed or withdrawn, for example, are not set out on the face of the Bill but will be contained in Regulations, along with other significant details about the proposed regulatory scheme.[70] We note that during Public Bill Committee, the chief executive of the General Teaching Council for England, which will administer the licensing scheme, was reported to be concerned that the scheme might be "unduly burdensome" but said that there was "a lack of information from the Department … about how the scheme will work".[71]

1.60 The Government justifies the skeletal nature of the Bill's provisions about licensing teachers on the basis that the framework and processes will develop and evolve over time, and the scheme therefore needs to be flexible enough to take account of changes in practice and be responsive to the needs of those affected.[72] We are not persuaded that there is any greater need for flexibility and responsiveness in this particular regulatory context than any other: the lack of detail on the face of the Bill appears to be more a symptom of hurriedly prepared legislation than a considered attempt to ensure flexibility and responsiveness.

1.61 We accept that a licensing system is in principle capable of being a justifiable interference with the right of teachers to earn a living practising their profession, under Article 1 Protocol 1, and that the protection of the rights of children to a good quality education is a legitimate aim for these purposes. However, there is too little detail on the face of the Bill for us to be able to assess whether the proposed licensing scheme will operate in practice in a way which is compatible with the right of teachers to practise their profession. We recommend that the Bill be amended to include more detail of the proposed licensing scheme on the face of the legislation, including, for example, the grounds for refusing or withdrawing licences.

1.62 The proportionality of the interference with teachers' Article 1 Protocol 1 rights depends in part on the adequacy of the procedural safeguards to ensure that decisions concerning a teacher's right to practise are not arbitrary or otherwise disproportionate. This overlaps with the issue of whether the licensing regime is compatible with the right of teachers to a fair hearing under Article 6(1), including their right of access to court, to which we now turn.

(c) Teachers' right to a fair hearing

1.63 The Bill gives the Secretary of State the power to make regulations concerning an appeals process,[73] which it is envisaged will be a committee of the General Teaching Council for England ("the GTCE").[74] The Explanatory Notes to the Bill state that the Government considers that this is an 'independent' appeal which is sufficient to satisfy the requirements of Article 6 ECHR, and that in any event the decision of any General Teaching Council appeal panel would be open to judicial review.[75] The Minister in his response to our queries asserts that appropriate safeguards will be put in place in the Regulations governing the appeals system to ensure that the system is Article 6 compliant.[76]

1.64 The Government believes that it is right that the General Teaching Council, which is the professional body for teachers and regulates the profession, has the key role in delivering the licensing system including the need for hearing appeals. Since the nature of such appeals is likely to require that those hearing them possess a measure of professional expertise and experience, the Government believes that the GTCE are best placed to appoint such committees, which would comprise 3 members, only one of whom may be a member of the Council. In the Government's view, such appeal committees will be independent of the body which makes the original licensing decisions, and judicial review of the appeal committees will also be available.

1.65 We do not accept that a right of appeal to a committee of the very same body as makes the original licensing decision (GTCE) satisfies the requirement of Article 6 ECHR that there be access to an independent and impartial tribunal. Nor is the availability of judicial review of such a committee sufficient to satisfy Article 6. The Government argues that the proposals in relation to teachers are in line with those in place for both doctors and dentists. In fact, it is well established that in order to be compatible with Article 6 those appeal arrangements must be interpreted as providing a right of appeal to a court of full jurisdiction on fact and law (as opposed to the more limited right to apply for judicial review).[77] We recommend that the Bill be amended either to provide a right of appeal to a genuinely independent appellate body (not a committee of the GTCE) or to provide a full right of appeal to a court of full jurisdiction.

(4) REPORTING OF FAMILY COURT PROCEEDINGS

1.66 The Bill contains measures designed to enable wider reporting of information relating to family proceedings.[78] This raises controversial issues of the correct balance between the right of the press to report court proceedings, and the public to receive such information, under Article 10 ECHR and children's right to respect for their privacy (Article 8 ECHR) as well as their best interests (under Article 3 of the UN Convention on the Rights of the Child).

1.67 Both the Explanatory Notes to the Bill and the Department's human rights memorandum describe the object of these provisions as being to "rebalance" the right to privacy in Article 8 ECHR and the right to freedom of expression in Article 10 ECHR, by giving greater weight to the latter. Neither, however, make any mention of the UN Convention on the Rights of the Child, Article 3(1) of which provides that in all actions concerning children the best interests of the child shall be a primary consideration. Restrictions on the attendance of the media at, and reporting of, family proceedings serve not only to protect the Article 8 rights[79] of parties and witnesses but may also be in the best interests of the child. We therefore asked the Government what consideration had been given to the best interests principle in the UNCRC in drawing up these provisions.

1.68 The Government replied that policy consideration has proceeded throughout on the basis that the identification of a child as being involved in family proceedings will generally not be in that child's best interests. The stringency of the restrictions on publishing identifying material is therefore key not only to the Article 8 rights involved but also to the question of the best interests of any children involved. The child's best interests are also said to be maintained as a primary consideration when the court is determining what information may be published in relation to family proceedings in which children are involved.

1.69 We received representations expressing concerns about whether these provisions in the Bill take sufficient account of the best interests of children.[80] The Children and Family Court Advisory and Support Service ("CAFCASS") is concerned that the provisions will lead to children and young people being less willing to share information with CAFCASS practitioners and therefore the courts, because of their concern that the information will be reported, and that this will operate against children's best interests because it will lead to less disclosure[81].

1.70 When we suggested to the Government that the best interests principle could be given effect in the Bill by including an express restriction on publication which would not be in the best interests of the child, its response confirmed our concern. It responded that this would be to make the best interests of the child "the paramount consideration" rather than a "primary" consideration, and that would mean that "no balancing of interests would be possible."[82] We do not consider that the best interest of the child is merely one consideration to be balanced against other rights and interests such as freedom of expression: rather, the best interests of the child should be paramount, and the Government's response renews our concern that the provisions in the Bill on the reporting of family proceedings do not achieve this.

1.71 We are concerned that the provisions on the reporting of family proceedings in the Bill may not be compatible with the best interests of the child principle in Article 3 UNCRC. Any relaxation of the restrictions on the attendance of the media at, and reporting of, family proceedings should not be at the expense of the best interests of the child principle. To ensure that the best interests principle in Article 3 UNCRC continues to be respected, we recommend that the Bill be amended so as to include an express restriction on the publication of information where such publication would not be in the best interests of the child.

(5) HOME EDUCATION

1.72 The Bill introduces a registration and monitoring scheme for home-educated children in England.[83] We decided not to scrutinise this aspect of the Bill in view of the higher significance threshold that we have applied in our legislative scrutiny work during this shorter than usual legislative session to enable us to report in time on the most significant issues.[84] However, in view of the limited information contained in the Explanatory Notes about the Government's consideration of the human rights issues at stake, our staff did ask for a more detailed explanation of the Government's thinking in relation to the human rights implications of this measure.

1.73 More detailed explanation was provided in the letter from the DCSF Legal Adviser dated 15 January, largely taken from the ECHR memorandum.[85] In view of the controversy which the Bill's home education provisions have generated, we draw attention, without comment, to the Government's more detailed explanation of its assessment that the home education provisions in the Bill are compatible with the various human rights at stake. We emphasise that we have not scrutinised this part of the Bill for human rights compatibility. We may return to this issue in our next legislative scrutiny report.

1 We received evidence from British Institute of Human Rights, Brook, the Children's Rights Alliance, CAFCASS, Family Education Trust, Family Planning Association, the Law Soiety, Marie Stopes International, Stonewall and a number of individuals. Back

2 Bill 8-EN paras 204-225. Back

3 See below, paras. 1.26-1.51 Back

4 EN paras 210-212. Back

5 See below, paras 1.52-1.65. Back

6 Ev 46-49. Back

7 Press Notice No. 57, 28 July 2009. See:

http://www.parliament.uk/parliamentary_committees/joint_committee_on_human_rights/jchrpn057_280709.cfm Back

8 Fourteenth Report of Session 2008-09, Legislative Scrutiny: Welfare Reform Bill; Apprenticeships, Skills, Children and Learning Bill; Health Bill, HL 78/HC 414, at paras 2.5-2.6. Back

9 Ev 10-16. Back

10 Clause 1(1). Back

11 Ev 6-10. Back