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

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

Letter to the Chair from Vernon Loaker MP, Minister of State for Schools and Learners, Department for Children, Schools and Families, dated 2 February 2010

Thank you for your letter of 14 January 2010 about the human rights implications of the Children, Schools and Families Bill.

I understand that a letter from my principal legal adviser on the Bill, Scott Trueman, was sent to your legal adviser on 15 January 2010, and will therefore have crossed with your own correspondence. Many of the issues raised in your letter, and a number of the questions you have put, are dealt with in that letter, and I do not therefore intend to respond again to those points. Our response on the remaining issues and questions you have raised are set out below, in the same order in which you raised them.

(1) ENFORCEABLE ENTITLEMENTS FOR PARENTS AND PUPILS

My officials have already dealt in large part with questions one and two of your letter, save to say that this does not represent in any way a "change of heart".

You ask if the Government's more "rights-oriented" approach to the delivery of public services has been influenced by the work of the Public Administration Select Committee (PASC). You will, of course, be familiar with Liam Byrne's letter of 29 September 2009 to Tony Wright setting out the Government's further response to "From Citizen's Charter to Public Service Guarantees: Entitlements to Public Services". As Liam outlined there, "Building Britain's Future", published July 2009, announced a move away from a system based primarily on targets and central direction to one where individuals have entitlements over the service they receive. Included among those key entitlements were the proposed pupil and parent guarantees. As Liam said then:

"The aim is to ensure high quality standards for all and, by increasing the power of people to demand services reach these standards, help drive up service performance and efficiency. I think that it reflects the overall approach advocated by PASC."

The pupil and parent guarantee documents are unusual in that they perform dual functions. In some instances and circumstances, they are able (by virtue of clause 1(2) of the Bill) to impose mandatory requirements onto local authorities, governing bodies and other proprietors of schools and head teachers. The documents can also, however, act as, in effect, statutory guidance to those same bodies and may, as the Bill states "set out aims, objectives and other matters" to which those bodies must have regard. It follows from this 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. In many cases, where the documents provide guidance or aims, or entitlements not suitable for direct enforcement, judicial review would not be appropriate.

The intention of the document, and the complaints system to be provided through the Local Government Ombudsman (LGO) (or, in Academies, through the Young Persons' Learning Agency (YPLA)), is precisely to avoid litigation by offering parents and pupils an accessible, cost-effective and swift method of redress. The identity of parties against whom judicial review could be sought would depend, obviously, on the nature and extent of the obligation imposed upon them and, to the extent that the LGO is clearly a public body whose decisions are susceptible to review, his decisions might also be challenged through the courts. We consider this unlikely, however, given the likely cost-benefit to a claimant from commencing what would be expensive and lengthy proceedings.

We do not believe that the pupil and parent guarantees will lead to unacceptable judicial interference in the delivery of public services or distract service providers from their task of delivery. In the first place, we are confident that—as now—schools and local authorities will strive to resolve any concerns quickly and locally and in the second, we believe that the provision of an effective and simple redress mechanism through the LGO or YPLA will reduce the likelihood of complaints being pursued to Judicial Review.

The pupil and parent guarantees embody the most important aspects of what parents and pupils can rightly expect from schools. There is therefore no question that they would distract service providers from their task of delivery; rather, the guarantees reflect the most important aspects of the work of schools and the school-related functions of local authorities.

We share the Committee's concern that the guarantees should not benefit only the articulate and educated. As part of consultation on the guarantees, we are working with the Department's Parents Panel (which is a representative group of parents) as well as consulting bodies that represent the interests of parents and young people themselves. Our aim is to ensure that the guarantees are known and understood by as many parents and young people as possible. As the LGO and the YPLA develop the redress mechanisms, we know that they too will strive to ensure that their services are available and accessible to all those who may wish or need to use them.

Turning to your question five, the parent and pupil guarantees set out, as the Bill states, what parents and pupils "are entitled to expect with regard to the school". The guarantees therefore set out facets of the state schooling system that parents are entitled to expect for their children, and pupils are entitled to expect from their schools. These are, self-evidently, benefits within the school system.

As you will know, 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 and the case of Simpson is still good law. Indeed, I note that this case was relied upon much more recently in the domestic context in several cases, including R (B) - v - Alperton Community School, [8]when 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 rights are conferred, they are clearly public law rights only. The possibility of financial compensation is specifically excluded by the parental complaints system utilised by the Bill[9] so far as governing bodies and head teachers is concerned. As you yourself note, the LGO can "recommend" financial compensation by a local authority under the Local Government Act 1974, and this would in theory apply also to a breach of a guarantee by a local authority if the Bill is enacted; but there would be no method of enforcing such a recommendation, and it remains the decision of the local authority whether to accept the recommendation.

Question 6 asks a much more general question about the Government's perception of Article 6. I assume that the first bullet in this question is intended to read "…to establish that the entitlements do not amount to civil rights?" There is no doubt that the Courts have recognised that the principles contained in Article 6 are a part of English law. In general, Article 6 has simply re-enforced those common law rights, though article 6 applies a more "structured" approach when applying the overriding test of fairness to the facts of a case, and asks different questions at each stage, from the tests applied by the common law.[10] I am not sure that I can usefully add much more to that in this context.

(2) PERSONAL, SOCIAL, HEALTH AND ECONOMIC EDUCATION (PSHE)

Questions 7-11 posed in this section were, in the main, answered by the letter from my officials. In relation to question number nine, the proposal you make would seem not to answer the points made in our previous letter about the risk of litigation to schools, and the possibility of uncertainty that was not in anyone interests. This is not something, therefore, that we would consider at this time.

Questions 12-14 raise some important issues and I am happy to take this opportunity to explain our thinking on them. As you will appreciate, these are matters on which there are many sincerely held but widely divergent views. It falls to the Government therefore to balance these views and to reflect that in legislation, where necessary. As the explanatory notes to the Bill explain, the teaching of PSHE will be subject to three main principles. These principles are ones with which head teachers and governing bodies must comply in providing the necessary teaching. As Mr Trueman set out in his letter of 15 January, it is our intention that schools be permitted, under the second of these principles (at new section 85B(6)(a) of the Education Act 2002) to teach in a manner than 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.

The questions you pose here are ones that the Committee has also raised in debate recently in the context of the Equality Bill. As the Government indicated there, in the context of the exemption of the curriculum from the requirements around discrimination, it is our intention 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 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. The requirements of the other principles will be key here. Faith schools will not be able to suggest that their own views are the only valid ones, and must make clear that there are a wide range of divergent views. But if their beliefs are explained in an appropriate way in an educational context that takes into account existing guidance on sex and relationships education (SRE) and religious education, then schools should not be acting unlawfully.

We consider in this way 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. I should add that many faith schools already successfully teach the non-statutory PSHE syllabus in this way.

It is also worth noting that the until the current Equality Bill is passed and comes into force, the Equality Act (Sexual Orientation) Regulations 2007 apply in schools as much as they do in any other context and these too will prevent inappropriate treatment of gay pupils or gay parents by preventing discrimination (ie less favourable treatment) on the grounds of sexual orientation.

As you say, guidance on the practical operation of the new PSHE curriculum will be essential for schools to fully understand their responsibilities—but many schools have been teaching PSHE on a non-statutory basis for many years, and many have found practical solutions to these sensitive issues. Although the guidance that will be issued pursuant to this Bill has not yet been prepared, updated guidance on SRE under the existing law was published on 25 January, and this does reflect, to some degree, the intention to introduce these new principles. I enclose a copy of that guidance for your information.

You may be interested to know that the Department has recently also published guidance on dealing with and preventing homophobic bullying.[11]

(3) REPORTING OF FAMILY COURT PROCEEDINGS

In question 15 you asked what consideration had been given to the best interests principle in the United Nations Convention on the Rights of the Child (UNCRC) in drawing up the provisions concerning the reporting of family proceedings. As the Committee indicates, Article 3(1) of the UN Convention requires the best interests of the child to be a primary consideration in all actions concerning children, including actions by judicial authorities. Policy consideration has proceeded throughout on the basis that identification of a child as being involved in family proceedings will generally not be in that child's best interests, and that has been the principal basis on which the provisions concerning identification information were developed. The stringency of the restrictions on publishing identifying material is accordingly key not only to the Article 8 rights involved, but also to the question of the best interests of any children involved. Under the existing framework, it is not the prohibition in section 12(1)(a) of the Administration of Justice Act 1960 (on reporting information relating to certain family proceedings[12] held in private) that protects a child involved in proceedings from being named in reports, but the specific prohibition in section 97(2) of the Children Act 1989.[13] Section 97(2) protects a child involved in proceedings from a publication to the public or a section of the public of information intended or likely to identify that child as being involved in certain proceedings [in which powers under that Act may be exercised]; but that protection ceases when the proceedings conclude, unless the court orders that it should continue. The Bill (as well as extending the protection to other persons involved in proceedings) provides that it will be a contempt of court to publish information likely to identify a child as being or having been involved in relevant proceedings regardless of whether and when the proceedings have concluded (see the definition of "identification information" in clause 40(1)).

The prohibition on publication of identification information may only be lifted to the extent that the court so orders, which it may only do if satisfied of at least one of four specific grounds for permitting publication, which are (a) that it is in the public interest; (b) that it is appropriate in order to avoid injustice to a person involved in the proceedings; (c) that it is necessary in the interests of a child or vulnerable adult involved in the proceedings; or (d) that permission has been applied for by a party to or on behalf of a child involved in the proceedings and it is appropriate in all the circumstances to grant it (clause 35(3)). It should be borne in mind that these are threshold conditions, and the court is not required to give permission if it is satisfied of any of them, but it may not give permission unless it is so satisfied.[14] In addition, the court must have regard to any risk which publication would pose to the safety or welfare of any individual (which will include any child) involved in the proceedings. The child's interests in deciding whether or not to permit publication, are therefore a very strong—a primary—consideration in that decision.

Specific provision in relation to certain identifying information in relation to adoption is made by clause 36, reflecting risks specific to adopted persons (or those who may be adopted) and their adoptive families. Where the person who may be, or has been adopted, is a child the court may permit publication of such information only if satisfied that publication would not prejudice the safety or welfare of that child (clause 36(4)(a) of the Bill. The best interests of the child are accordingly again made a primary consideration.

Should the amending provisions of Schedule 2 to the Bill be commenced following review as provided for in clause 40, the prohibition on publication of sensitive personal information would be removed. The court would, however, have the explicit power to prohibit or restrict publication if there is a real risk that publication would prejudice the welfare of a child or vulnerable adult. Any such prohibition or restriction would of course be in addition to the prohibition on publication of identifying information. This maintains the child's best interests as a primary consideration in determining what information may be published in relation to family proceedings in which children are involved.

At question 16, you asked what objection the Government would have to including in the Bill an express restriction on publication where such publication would not be in the best interests of the child. Such a provision would have the effect of making the best interests of the child the paramount consideration, rather than the primary consideration (which article 3 recognises). If it were to be made impossible to publish information relating to family proceedings involving a child unless that publication could be shown to be in the child's best interests (which appears to be the intention), publication would in practice require prior authorisation of the court. No balancing of interests would be possible. Effectively publication would become possible only in cases such as those involving missing children, where publication of the child's details is necessary in the child's interests to ensure that the child can be located and his or her safety assured. This would represent a considerable restriction compared to the existing position which recognises the need to balance competing interests].

(4) LICENSING TEACHERS (THE "LICENCE TO PRACTISE")

In this section of your letter to me, you set out some preliminary remarks on the licensing scheme. Dealing first very briefly with the comment that the provisions in this part are "skeletal", I would say that the framework and processes around the licence to practise will develop and evolve as time passes, and establishing the new system in this way will provide us with the flexibility to take account of changes in practise and be responsive to the needs of those affected.

Turning to the Convention rights and to your question 17, it is our view that these are not engaged by the introduction of a system of licences to practise in itself.

In relation to Article 1 Protocol 1, we do not believe that a teacher's right to earn a living practising their profession constitutes a possession for these purposes. We have previously referred to the case of Waltham Forest NHS Primary Care Trust v Zafra Iqbal Malik,[15] which followed the reasoning in R (Countryside Alliance) v Attorney General.[16] In the latter case, Lord Bingham of Comhill stated that:

"Strasbourg jurisprudence has drawn a distinction between goodwill which may be a possession for the purposes of article 1 of the First Protocol and future income, not yet earned and to which no enforceable claim exists, which may not".

No present legal entitlement or ownership is conferred by virtue of being a qualified teacher. A teacher does not have an absolute right to future income earned practising his or her profession: this depends on obtaining suitable employment by which to do so. The right therefore is only to be in a position to apply for appropriate employment in the future and there is no enforceable claim that attaches.

In addition, as we outlined in our original memorandum, the loss of a licence to practise does not lead to the loss of professional status or the ability to apply for one again. If the teacher can bring their practice back up to standard they can obtain a new licence, although until then they will not be able to teach unsupervised. We are developing precise mechanisms for how and when a teacher who may have lost a licence can seek to recover it in the future.

Even if the right to practise their profession were found to be a possession, any deprivation would be justifiable as in the public interest and subject to conditions and a right of appeal that are compliant with Article 6.

In relation to Article 6, the right to a fair hearing will only be engaged on a refusal by the GTCE to grant or renew a licence since this is the point at which any right to practise will be at issue. I deal with the question of compliance with Article 6 in the reply to question 20.

In response to question 18, we agree that this is a significant restriction, but we believe this is a proportionate measure designed to improve standards, which balances the rights of a qualified teacher against those of the children whom they teach. The quality of services for children and young people depends on the people who work in those services. To achieve further improvements in outcomes for pupils in school we need to build on the excellent practice that already exists to ensure consistent high quality teaching in line with other world class school systems.

The licensing system will operate alongside the current performance management system, provided for by regulations in relation to maintained schools, and the obligation of teachers to participate in arrangements for appraisal made in accordance with such regulations will remain. Where there are particular concerns over practise and before a licence is removed, teachers will be subject to a period of enhanced support under local capability procedures.

The introduction of the licence to practise is accompanied by provisions—to be included in the School Teacher's Pay and Conditions Document—that will give all teachers and head teachers an entitlement to Continuing Professional Development (CPD). These provisions, coupled with the current performance management/appraisal arrangements, will help ensure that teachers have the opportunity to bring their performance up to the standards required by the licence and so avoid having their ability to practise restricted.

You ask at question 19, about draft regulations. Clearly Parliamentary time is short but, as set out in our policy statement for clause 23, which was published on 19 January 2010, we are aiming to publish full, draft regulations for consultation in spring 2010; and the Regulations will be laid before Parliament and, therefore, be subject to Parliamentary scrutiny in the normal way.

Turning to question 20, and the possibility of appeals, appropriate safeguards will be put in place in the Regulations governing the appeals system to ensure that the system is Article 6 compliant.

New teachers attempting to secure a full licence at the end of their induction period (during which we envisage they will have held a temporary licence), will continue to have access to the General Teaching Council (GTC) Committee, which hears appeals when a decision has been made locally to fail someone at the end of induction or extend an induction period. Further information about these arrangements can be found at: www.gtce.orq.uk/publications/induct appeals/.

It is obviously crucial, however, that we also establish a fair appeals process for those teachers who already hold a full licence. We envisage a two tier process:

— Tier 1—locally by using grievance procedures required by regulations, and

— Tier 2—nationally through the GTC—established Committee.

Under tier 1, a teacher would be able to use (as at present) the appeals processes at regulation 19 or, depending on precisely who is their employer, regulation 33 of The Education (School Teacher Performance Management) (England) Regulations 2006[17] to appeal against any of the entries in their planning and review statement (their performance management review). This statement will be critical in terms of licensing decisions

Under tier 2, once the local grievance process with regard to the planning and review statement is exhausted and a decision regarding the licence has been made, an appeal to the GTC could be made. Grounds for appeal will be set out in regulations and accompanying guidance.

It is proposed that appeals will be heard by a committee established by the GTCE. The GTCE is the professional body for teachers and one of its key functions is to regulate the profession. We believe that it is right that it has the key role in delivering the licensing system including the need for hearing appeals.

The nature of such appeals are likely to require that those hearing them possess a measure of professional expertise and experience to enable them to determine the issues in question. We believe that GTCE are best placed to appoint such committees. We would propose to mirror the make up of similar GTC committees, comprising three members—only one of whom may be a member of the Council. Of the three members, one would provide lay input and two would have professional expertise. This will enable expert bodies to be established, regionally where necessary, and independent of the body which makes the original licensing decisions.

Our proposals are in line with those in place in respect of both doctors and dentists. The licensing schemes established by, respectively, Part IIIA of the Medical Act 1983 and Part III of the Dentists Act 1984, both provide for the body that makes the original licensing decision and the appeals panel (in respect of dentists, regarding fitness to practice), to be part of, respectively, the General Medical Council and the General Dental Council.

Any decision of an appeals committee would potentially be susceptible to Judicial Review in the normal way, once all other appeals routes outlined above have been exhausted.

In general, to create a new body to hear appeals would add an additional layer of bureaucracy and add to the costs for all those involved. We believe that our plans for appeals will provide for appropriate separation between those making licence recommendations; those awarding licences; and those considering appeals.

It should also be noted that we are working extremely closely with social partners and GTCE on the development of the licence to practise and associated systems, and this provides challenge and a rigorous overview on a range of matters, including the appeals process.

I hope that this satisfies the questions you have raised.