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


Letter from the Chair of the Committee to the Rt Hon Ed Balls MP, Secretary of State for Children, Schools and Families, dated 14 January 2010

CHILDREN, SCHOOLS AND FAMILIES BILL

  The Joint Committee on Human Rights is considering the compatibility of the Children, Schools and Families Bill with the requirements of human rights law. I am grateful for the detailed memorandum your Department sent to the Committee on 3 November, setting out in detail the Government's consideration of the human rights issues relating to the Bill. This is of considerable assistance to the Committee when it is scrutinising the Bill.

  I am also grateful to your officials in the Bill team who have met with the Committee's Legal Adviser in December to discuss some of those issues. At that meeting your officials kindly offered to provide some more information to assist the Committee in its scrutiny of the Bill and we look forward to receiving that. In the meantime I would be grateful if you could provide me with the answers to the following questions.

(1)  ENFORCEABLE ENTITLEMENTS FOR PARENTS AND PUPILS

  The Bill provides for pupil and parent "guarantees", a set of specific entitlements which pupils and parents are entitled to expect from their school and which are intended to be enforceable through certain enforcement mechanisms. Pupils and parents will be entitled to complain about failure to meet the guarantees including to the Local Government Ombudsman. It is envisaged that judicial review may also be available if necessary.

  This part of the Bill raises an important human rights issue considered in detail by the Committee in its Bill of Rights report: whether economic and social rights such as the right to education can be made the subject of individual entitlements with some means of redress without subverting democratic accountability for public expenditure. At that time, the Committee's report was in favour, but the Secretary of State for Justice, the Rt Hon Mr Straw MP, and the Human Rights Minister, the Rt Hon Michael Wills MP, were against.

Q1.   Does the Bill's embrace of legally enforceable guarantees to a minimum set of entitlements indicate an evolution in the Government's position since 2008 when, in its evidence to our Bill of Rights inquiry, it stated its categoric opposition to any legally enforceable social rights? What accounts for the Government's change of heart?

Q2.   Has the Government's recent more rights-oriented approach to the delivery of public services been influenced by the work of the Public Administration Select Committee on Public Service Guarantees and, if so, how?[2]

Q3.   The Department's human rights memorandum states that redress will be available "both through the Ombudsman and, if necessary, through judicial review." Against whom is it envisaged judicial review will be available: (a) governing bodies; (b) local education authorities; (c) the Local Government Ombudsman; (d) the Secretary of State; or (e) all of the above?

Q4.   How does the Government counter the criticisms that legally enforceable guarantees in public services such as education will lead to unacceptable judicial interference in the delivery of public services, distract service providers from their task of delivery, and only serve to benefit the articulate and educated?

  The human rights memorandum states that the entitlements provided by the guarantees are unlikely to amount to civil rights within the meaning of Article 6 ECHR, citing an old decision of the European Commission of Human Rights, Simpson v UK.

Q5.   Will the Government reconsider its view that Article 6 does not apply, in view of more recent developments in the case-law concerning the scope of "civil rights" in Article 6 ECHR, and the fact that the Local Government Ombudsman will be able to recommend financial compensation against local authorities where guarantees are not met?

Q6.   Does the Government accept that there is no difference in content between the common law of procedural fairness and Article 6(1) ECHR?

—  If so, why is the Government concerned to establish that the entitlements amount to civil rights?

—  If not, what does the Government consider to be the difference in content between the two?

(2)  MANDATORY SEX AND RELATIONSHIPS EDUCATION

  The Bill provides for mandatory sex and relationships education with a parental right to opt out their child out if they are under the age of 15. Given that the UK has one of the highest rates of teenage pregnancy in Europe, the provision of mandatory sex and relationships education and the limitation on the parental right of withdrawal to those under 15 are likely to be regarded by the Committee as significant human rights enhancing measures, for the reasons given in the explanatory material accompanying the Bill. They enhance 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, and their right under Article 12 of the UN Convention on the Rights of the Child to have their views taken into consideration.

  However, the continued provision of a parental right of withdrawal from sex and relationships education raises questions about the Bill's compatibility with those rights, 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).

  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" 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.[3]

Q7.   A girl under the age of 15 who is of sufficient maturity and understanding to reach her own decisions about contraception, abortion and other matters concerning her sexual health ("Gillick competent") is able to obtain advice and treatment from medical professionals on those matters without parental consent. What is the Government's 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?

Q8.   What is the Government's objection to limiting the parental right of withdrawal by reference not to a child's age, but to the well-established and widely understood concept of "Gillick competence", that is, whether he or she is of sufficient maturity and understanding to reach their own decisions on the matter?

Q9.   Would the Government consider amending clause 14 of the Bill in a way which leaves 15 as the presumptive age of Gillick 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?

Q10.   OFSTED has reported that 0.04% of children are currently withdrawn from sex and relationships education by their parents. Does the Government have any more up to date information than this?

Q11.   Has the Government conducted any analysis of what proportion of children withdrawn from sex and relationships education are girls and what proportion boys? Is this regarded by the Government as relevant to its equality impact assessment of the proposal?

  The Macdonald review of PHSE said that faith schools would be allowed to deliver PHSE lessons in line with the "context, values and ethos" of their religion, and this was accepted by the Government. Before the Bill was published you were 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."[4] The Bill provides that PSHE should be taught in a way that endeavours to promote equality and encourages acceptance of diversity, but is also appropriate to the religious and cultural backgrounds of the pupils concerned.[5]

Q12.   Is it the Government's intention that faith schools should be free to teach that homosexuality, contraception and sex outside marriage are wrong, sinful or immoral? Is this the intended effect of the provision that PSHE should be taught in a way that is appropriate to the religious and cultural backgrounds of the pupils concerned?

Q13.   If so, what are the Government's reasons for its view that such teaching as part of PHSE is compatible with the right of children who are gay themselves, or the children of a gay couple, or whose parents are not married, not to be discriminated against in their enjoyment of their right to respect for their private and family life, and their right to education, on grounds of sexual orientation, birth or other status (Article 14 ECHR in conjunction with Articles 8 and Article 2 Protocol 1)?

  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.[6] 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.

Q14.   Will a draft of the Secretary of State's guidance envisaged in new s. 85B(8) be made available during the passage of the Bill? If not, will you make public in outline how you propose to guide schools about how to reconcile in practice the tension between the principle that PHSE 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)  REPORTING OF FAMILY COURT PROCEEDINGS

  The Bill contains measures designed to enable wider reporting of information relating to family proceedings. 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 the UN Convention on the Rights of the Child).

  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 of parties and witnesses but may also be in the best interests of the child.

Q15.   What consideration has been given to the best interests principle in the UNCRC in drawing up these provisions concerning the reporting of family proceedings?  

Q16.   What objection would the Government have to including in the Bill an express restriction on publication where such publication would not be in the best interests of the child?

(4)  LICENSING TEACHERS

  The Bill introduces a licensing scheme for teachers. If they are refused a licence, or a renewal, this would prevent them from teaching unsupervised in maintained schools and Academies. The provisions in this part of the Bill are skeletal. The circumstances in which a licence may be granted or refused, renewed or withdrawn are not set out on the face of the Bill but will be contained in Regulations.[7]

  The Government's view is that the establishment of a licensing scheme for teachers does not engage any of the Convention rights. It 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 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. The teacher could still continue to teach, albeit under supervision, or could teach at independent schools.

Q17.   Please explain in more detail, including by reference to Strasbourg case-law, the basis for your view that the introduction of a system of licences to teach does not engage teachers' rights to earn a living practising their profession (Article 1 Protocol 1 ECHR) or their right to a fair hearing (including access to a court) in the determination of their civil rights (Article 6(1) ECHR).

Q18.   Do you agree 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?

Q19.   Will the Government publish in draft, during the passage of the Bill, the regulations which will make provision for the grant, refusal, renewal or withdrawal of a licence to teach?

  The Bill gives you the power to make regulations concerning an appeals process, which it is envisaged will be a committee of the General Teaching Council. The Explanatory Notes to the Bill state that the Government considers that this independent appeal is sufficient to satisfy the requirements of Article 6 ECHR. The General Teaching Council is the body which will make the licensing decisions.

Q20.   Please explain in more detail the basis for your view that a right of appeal to a committee of the same body as makes the original licensing decisions can satisfy the requirement of Article 6 ECHR that there be access to an independent and impartial tribunal.











2   See eg Twelfth Report of Session 2007-08, From Citizen's Charter to Public Service Guarantees: Entitlements to Public Services, HC 411. Back

3   R (Axon) v Secretary of State for Health [2006] EWHC Admin 37. Back

4   Daily Telegraph, 5 November 2009. Back

5   New section 85B(6)(a) of the Education Act 2002, as inserted by clause 11(4) of the Bill. Back

6   New section 85B(8). Back

7   New section 4B(2) of the Teaching and Higher Education Act 1998. Back


 
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