Conclusions and recommendations
Explanatory Notes
1. 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
(Paragraph 1.8)
Significant human rights issues
Giving legal effect to economic and social
rights
2. 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
(Paragraph 1.19)
3. To ensure that
the human rights dimension of the pupil and parent guarantee's
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,
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 (Paragraph 1.20)
The right to a fair hearing in determining
whether a guarantee has been breached
4. 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
(Paragraph 1.25)
Mandatory sex and relationships education
Children's right of access to health information
5. 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. 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 (Paragraph 1.28)
The right of parent withdrawal
6. 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
(Paragraph 1.34)
7. 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.
(Paragraph 1.39)
8. 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. (Paragraph
1.40)
Sex and relationships education in faith schools
9. 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.
(Paragraph 1.47)
10. 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
(Paragraph 1.50)
11. 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.
(Paragraph 1.51)
Licensing teachers
The right of qualified teachers to practice
their profession
12. 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.
(Paragraph 1.56)
13. 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.
(Paragraph 1.57)
Proportionality of the interference with teachers'
right to practice
14. 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
(Paragraph 1.61)
Teachers right to a fair hearing
15. 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). 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
(Paragraph 1.65)
Reporting of Family Court proceedings
16. 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
(Paragraph 1.71)
Home education
17. 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. (Paragraph 1.73)
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