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 wrongwhat 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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