Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill

Legislative Scrutiny: Crime and Security Bill; Personal Care at Home Bill; Children, Schools and Families Bill - Human Rights Joint Committee Contents

3 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

8^th Report of 2009-10

Home education

3.1 In our report on this Bill we published the Government's more detailed explanation of its assessment that the provisions introducing a registration and monitoring scheme for home education are compatible with human rights.[162] We made clear that we had not scrutinised this part of the Bill for human rights compatibility and indicated that we might return to the issue in our next legislative scrutiny report. In this report we summarise our views on the main human rights issues raised by this part of the Bill.

3.2 Home education of compulsory school-age children is permitted in England and at present is largely unregulated. Local authorities have no clear idea how many children in their area are being home educated and the Government has no clear idea how many children are being home educated nationally. The Department estimates that there are currently anything between 20,000 and 80,000 children being home-educated in England.

3.3 The Bill introduces a new registration and monitoring scheme for children who are electively home educated.[163] The scheme requires local authorities to keep a register of all children of compulsory school age in their area who are being educated entirely at home. Parents of such children must apply for their child to be placed on the home education register. Local authorities must register the child but have a discretion not to in relation to certain children, which enables the local authority to consider issues such as whether the child would be safer being educated at school. Applications for entry on the home education register must be accompanied by a statement giving information about the child's prospective education.

3.4 Local authorities must monitor the education provided to a child on their home education register in order to ascertain whether the child is receiving a suitable education, whether the education accords with the information given about it in the statement accompanying the application for registration, what the child's wishes and feelings about it are,[164] and whether it is harmful to the child's welfare to continue to be educated at home. When monitoring the education provided, the local authority is required to see the child, the parent and the place where the education is to take place at least once during the registration period. Local authorities have the power to revoke registration on their home education register on grounds prescribed in the statute,[165] such as that it would be harmful to the child's welfare for home education to continue, or the child is not receiving a suitable education. In determining these matters, the local authority is required to take into account the wishes and feelings of the child as far as is reasonably practicable, and having regard to the child's age and understanding.[166] Parents will have the right to appeal to an independent panel against a local authority's refusal or revocation of registration.

3.5 The Explanatory Notes to the Bill focus on the negative compliance issue of whether the new scheme violates the human rights of parents.[167] The explanatory material contained in the letter from the Department's Legal Adviser, on the other hand, focuses more on the positive benefits of the provisions for the human rights of children.[168] It states that the registration and monitoring scheme for home-educated children will enhance protection of children's right, under the first sentence of Article 2 Protocol 1, not to be denied an education, by enabling local authorities to ensure that they are receiving a suitable education and are safe and well. The proposed scheme will also enhance children's right to have their views taken into account, in accordance with Article 12 of the UN Convention on the Rights of the Child, by explicitly building this requirement into the framework of the registration and monitoring scheme.

3.6 We agree that the provisions enhance children's human rights in the way the Government describes. We welcome the additional protection that the Bill provides for the right of children to have access to a suitable education and to have their views taken into account in decisions about whether home education is suitable for the child or harmful to his or her welfare.

3.7 The Government accepts that the proposed scheme engages the rights of parents, first, to respect for their right to ensure education and teaching of their children in conformity with their religious and philosophical convictions (under the second sentence of Article 2 Protocol 1) and, second, to respect for their private and family life and home (under Article 8 ECHR). However, it takes the view that the scheme is compatible with those rights because any interference with them is justified as a proportionate means of achieving the legitimate aim of ensuring that home-educated children receive a suitable education and are safe and well. The right of parents under the second sentence of Article 2 Protocol 1 does not guarantee an absolute right for parents to home educate children in accordance with their own wishes. Rather, "the paramount consideration under Article 2 of the First Protocol is the child's fundamental right not to be denied education." The rights of parents under the second sentence of Article 2 Protocol 1 cannot take precedence over the rights of their children under the first sentence of that Article. The ECHR case-law, in the Government's view, makes clear that a State may prevent a parent from home-educating their child where it reasonably considers that home education would be contrary to the child's wider education interests. There is therefore no breach of the second sentence of Article 2 Protocol 1, and any interference with the parent's Article 8 rights would be justified for the same reason.

3.8 We agree with the Government's analysis that this part of the Bill is compatible with the rights of parents under the ECHR. In Konrad v Germany the Court declared inadmissible a complaint by parents that the refusal of permission to educate their children at home violated their right to ensure an education for their children in conformity with their own religious convictions as guaranteed by Article 2 of Protocol No. 1.[169] In the Court's view, Article 2 of Protocol 1 implies the possibility for States to establish compulsory schooling and not to permit home education at all, and Germany was within the area of latitude allowed to it by that Article in deciding to require compulsory schooling. The paramountcy of the child's right to education over the rights of parents was also made clear:

3.9 … the second sentence of Article 2 must be read together with the first, which enshrines the right of everyone to education. It is on to this fundamental right that is grafted the right of parents to respect for their religious and philosophical convictions … . Therefore, respect is only due to convictions on the part of the parents which do not conflict with the child's right to education, the whole of Article 2 of Protocol No. 1 being dominated by its first sentence … . This means that parents may not refuse a child's right to education on the basis of their convictions.

3.10 It is therefore clear from the case-law of the ECHR that Article 2 Protocol 1 does not prevent states from prohibiting home education and requiring compulsory school attendance. It follows that it is even more clearly the case that a clearly defined registration and monitoring scheme for home education, with procedural safeguards and rights of appeal, such as that contained in the Bill, is compatible with Article 2 Protocol 1.

3.11 We therefore welcome the home education provisions in the Bill as measures which positively enhance the human rights of children and are compatible with the rights of parents.

Sex and relationships education in faith schools

3.12 In our report on this Bill we welcomed the Government's approach of making it an explicit statutory duty of the governing bodies and head teachers of maintained schools to secure that the teaching of PSHE, including sex and relationships education, complies with certain basic principles, including accuracy, balance, pluralism, equality and diversity.[170] We also welcomed the Government's apparent acceptance, in a letter from the Minister of State for Schools and Learners, Vernon Coaker MP, that although faith schools will be permitted to teach the views of their own faiths on a variety of topics, including homosexuality, abortion and contraception, such teaching will also have to comply with the other principles, including 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.[171] "Faith schools", we were told, "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." We welcomed this approach as a proper reflection of the principles in and approach required by the ECHR.

3.13 We expressed concern, however, 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, the Government explained to us, was intended to allow faith schools to teach sex and relationships education in accordance with their ethos.[172] We were concerned that, in the absence of the necessary protections against discrimination and harassment in the Equality Bill, this "principle" in the Bill would lead in practice to teaching which is incompatible with the rights of children who are gay themselves, or the children of a gay couple, or of a single parent, or whose parents are not married or are divorced, to respect for their private and family life and not to be discriminated against on grounds of sexual orientation, birth or other status.

3.14 On 19 February the Government tabled an amendment to the Bill to the effect that, in the case of schools designated by the Secretary of State as having a religious character, the duty on the governing body and the head teacher to ensure that certain principles are complied with in the teaching of PSHE, and the principles themselves, "are not to be read as preventing the governing body or head teacher … from causing or allowing PSHE to be taught in a way that reflects the school's religious character."[173]

3.15 We are disappointed not to have received from the Department any explanation of the Government's reasons for considering that its amendment is compatible with the UK's human rights obligations,[174] notwithstanding the clear guidance in the Cabinet Office Guide to Making Legislation that Departments should prepare a further ECHR memorandum when the Government proposes to table an amendment to the Bill which would in any way change the position in relation to the ECHR or raise any new ECHR issues,[175] and should write to the JCHR to take their view on the amendment;[176] our clearly stated expectation that the Government will provide us with such an explanation when tabling amendments; and the fact that the Department has long been aware that the provision in question in this Bill raises significant human rights issues on which the JCHR has previously reported.[177]An earlier indication of the Government's intention to amend the Bill in this way, and of its justification for doing so, would have enabled us to report on the human rights compatibility of the amendment in time for the Bill's report stage in the Commons. Such late and unreasoned amendments thwart attempts at serious parliamentary scrutiny of provisions with significant human rights implications.

3.16 We have received representations about the Government amendment from the Childrens Rights Alliance for England and the British Humanist Association. We publish the CRAE's letter with this report[178]. They complain that the Government's amendment puts the UK in breach of its international human rights obligations.

3.17 In our recent report on the Bill, although we welcomed the general approach of spelling out principles to be complied with in the teaching of PSHE, we pointed out an inherent tension in the principles set out in this part of the Bill between, on the one hand, the religious freedom of faith schools, and, on the other hand, the right of children to be treated equally, with dignity, and with proper respect for their private and family life. We drew attention to the obvious tension between the principle that PSHE should be taught in a way that endeavours to promote equality and encourages the acceptance of diversity and the principle that it should be taught in a way that is appropriate to the pupils' religious and cultural backgrounds. We felt that the Government was taking refuge in stormy waters by pointing to competing principles without taking responsibility for how they would be reconciled in practice. We called for clarity in the legal framework and firm leadership about precisely what is and what is not permitted by the standards of human rights law,[179] such as was displayed by the Government when introducing the Sexual Orientation Regulations.

3.18 The Government's amendment now resolves that tension unequivocally in favour of faith schools' freedom of religion. By permitting faith schools to teach PSHE in a way that reflects the school's religious character, notwithstanding the duty to ensure that it is taught in compliance with certain principles, the effect of the amendment is expressly to subordinate the principles of accuracy, balance, pluralism, equality and diversity to the schools' religious freedom. This is directly contrary to one of the most longstanding principles of the European Convention on Human Rights: that "the State, in fulfilling the functions assumed by it in regard to education and teaching, must take care that information or knowledge included in the curriculum is conveyed in an objective, critical and pluralistic manner."[180] Teachers cannot seek to advance only one view, because that amounts to indoctrination. Indeed in the case which established this principle as long ago as 1976, the European Court of Human Rights rejected the challenge to the provision of compulsory sex education in Danish state schools 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." The Government's amendment to this Bill expressly permits the opposite.

3.19 In our view, a provision which expressly subjects principles of accuracy, balance, pluralism, equality and diversity to the right of faith schools to teach sex and relationships education in a way that reflects the school's religious character, in the context of a Bill which makes the teaching of sex and relationships education in schools mandatory, is incompatible on its face with the ECHR. It expressly denies children at faith schools their right to an accurate, balanced, pluralistic education under the first sentence of Article 2 Protocol 1. Given the views of some faiths on matters such as homosexuality, abortion, contraception, marriage, civil partnerships and family arrangements, it also makes it inevitable that some children will be subjected to teaching which violates their right to respect for their private and family life, their dignity, and their right not to be discriminated against in their enjoyment of those rights, and of their right to education, on grounds of sexual orientation, birth or other status.

3.20 We recognise that faith schools have an interest in offering doctrinal instruction in sexual morality. Faith schools remain free to use optional classes in religious instruction for this purpose. We recommend that the Government amendment be withdrawn: it would put the UK in clear breach of its obligations under the ECHR. Had it been included in the Bill as introduced, it would have required a statement by the Secretary of State under s. 19(1)(b) Human Rights Act 1998.

162 Eighth Report of Session 2009-10, Legislative Scrutiny: Children, Schools and Families Bill; Other Bills, HL 57/HC 369 at paras 1.72-1.73. Back

163 Clause 26 and Schedule 1, inserting new sections 19A-I into the Education Act 1996. Back

164 New s. 19E(1)(c). Back

165 New s. 19F(1). Back

166 New s. 19F(4). Back

167 EN paras 213-217. Back

168 Eighth Report of 2009-10, above n.105, Ev 13. Back

169 Fritz Konrad and Others v Germany, Application No. 35504/03 Back

170 New s. 85B(4)-(7) Education Act 2002, inserted by clause 11 of the Bill; Eighth Report of Session 2009-10, above n.109 at para 1.47. Back

171 Eighth Report of 2009-10, above n.105, Ev 7. Back

172 Eighth Report, at para. 1.50. Back

173 Amendment 70, amending clause 11 of the Bill to insert a new sub-section (7A) in the Education Act 2002. Back