Written evidence
1. Letter to the Committee Chair, from Nick Gibb
MP, Minister of State for Schools, Department for Education, 2
February 2011
You will be aware that the Education Bill was introduced
in Parliament on 26 January. The Bill takes forward the legislative
measures in the Department for Education White Paper The Importance
of Teaching (CM-7980) as well as measures from the Department
for Business, Innovation and Skills on college freedoms and skills
entitlements and two elements of the Government's reforms to higher
education student finance.
I am pleased to attach a memorandum for your Committee
to consider in relation to the Bill. It examines the compatibility
of the legislation with the European Convention on Human Rights
and considers how the measures promote human rights, in particular
rights under the United Nations Convention on the Rights of the
Child.
If you have any questions or require further information
the please get in touch.
2 February 2011
2. Memorandum submitted by the Department for
Education, 1 February 2011
Introduction
1. This Memorandum sets out the Government's views
on the principal human rights implications of the Education Bill
which was introduced in the House of Commons on 26 January 2011.
2. On introduction of the Bill, the Secretary of
State made a statement under section 19(1)(a) of the Human Rights
Act 1998 that in his view the provisions of the Education Bill
are compatible with the Convention rights, as defined in section
1 of the Human Rights Act 1998; and in the explanatory notes to
the Bill the Government has provided an account of its assessment
of the impact of the Education Bill on the Convention rights.
3. To assist the Committee in considering the Bill
this Memorandum expands upon that account: it sets out those main
elements of the Bill that the Government considers create the
potential for interference with the Convention rights and in each
case describes what the provision does, the potential for interference,
and the Government's reasons for concluding either that the provision
in question does not interfere with those rights or that any interference
is justified.
4. In addition, the Memorandum considers the provisions
of the Bill against the rights enshrined in the United Nations
Convention on the Rights of the Child.
The content of the Bill
5. There are four key themes to this Bill:
a) Restoring good behaviour: ensuring that professionals
in schools and colleges have the authority and powers to tackle
poor behaviour so that all children can learn.
b) Freedom: removing unnecessary duties on schools,
colleges and local authorities to give them greater freedom and
extending the Academies and Free Schools programme.
c) Accountability: increasing schools' accountability
for raising educational standards and abolishing five arm's length
boaides, with their remaining functions falling to the Secretary
of State, accountable through him to Parliament.
d) Using resources fairly: narrowing the gap
between the attainment of children from rich and poor backgrounds,
with an entitlement to free early years provision for all disadvantaged
two-year-olds and enabling a more progressive system for higher
education student loans.
6. The Bill consists of ten Parts.
7. Part 1: Early years provision. This Part
enables the Government to make regulations that will extend the
requirement on local authorities to secure free early years provision
for specified groups of two-year-olds. The clause also enables
local authorities to identify eligible children by accessing information
about their family circumstances and applies protections to prevent
the unauthorised disclosure of this information.
8. Part 2: Discipline. Clauses in this Part
make changes to the power of staff at schools and colleges to
search pupils and students; reform the process for reviews of
permanent exclusions by replacing Independent Appeal Panels for
exclusions with Independent Review Panels; and remove the restriction
on schools issuing detentions to pupils without providing 24 hours'
written notice. The requirement on schools to enter into behaviour
and attendance partnerships is also repealed.
9. Part 3: School workforce. This Part abolishes
a number of arm's length bodies (the General Teaching Council
for England, the School Support Staff Negotiating Body and the
Training and Development Agency for Schools) and requires some
of their functions to be discharged by the Secretary of State;
the Secretary of State will be responsible for the funding of
teacher training and the regulation of the induction and barring
arrangements for teachers. It also makes provision restricting
the public reporting of allegations made against teachers.
10. Part 4: Qualifications and curriculum.
Clauses in this Part amend the structure of Ofqual and require
it to compare standards in England with those internationally;
abolish the Qualifications and Curriculum Development Agency;
amend the law relating to careers guidance; repeal duties in respect
of the diploma entitlement; and enable the Secretary of State
to require schools, which are sampled, to take part in international
surveys.
11. Part 5: Educational institutions: other
provisions. This Part removes the duty on schools to produce a
profile. The duty on schools and colleges to co-operate with Children's
Trusts and for schools to have regard to the area's Children and
Young People's Plan is repealed. Local authorities will no longer
be required to provide School Improvement Partners. The requirement
on local authorities to have admission forums is lifted. Local
authorities will also only have to report locally on admission
arrangements, rather than to the Office of the Schools Adjudicator.
The remit of the Office of the Schools Adjudicator will be only
to consider the complaint received in relation to a school's admission
arrangements, rather than other matters in the arrangements. This
Part lifts the restriction on charging every pupil the same amount
for the same school meal but in future charges will have to be
no more than the cost of providing the meal. The procedure for
the establishment of new schools is reformed and school governing
bodies will be able to determine their composition based on skills
rather than representative categories, though the position of
parent governors, the head teacher, and the foundation majority
is safeguarded. Ofsted routine school inspections will focus on
four key areas and Ofsted will not be required to inspect outstanding
schools and colleges. Ofsted will be able to charge for an inspection
where a school or college voluntarily requests one. The Secretary
of State will be able to ask Ofsted to inspect welfare at boarding
schools that are under an independent inspectorate and for Ofsted
to report annually to him about this. The problem of under-performing
schools will be tackled by widening powers to direct the closure
of schools and allow local authorities to be directed by the Secretary
of State to issue a warning notice to schools where this is warranted.
The schools complaints service established at the Local Government
Ombudsman, which deals with complaints in relation to 14 LA areas
is ended and the Secretary of State will be able to consider these.
Nursery schools and schools with nursery classes will be allowed
to charge for early years education beyond the current free entitlement,
which should provide greater choice for parents and create a level-playing
field between schools and voluntary and private providers of nursery
education. Bureaucratic requirements on colleges will be removed,
including the duties to: secure consent before borrowing; promote
the social and economic well-being of the local area; and have
regard to guidance on consultation with students and employers.
Powers to direct a college to invoke disciplinary procedures and
appoint members to governing bodies will be removed.
12. Part 6: Academies. Clauses in this Part
refine the provisions in the Academies Act 2010 and earlier legislation
and enable 16-19 only and alternative provision Academies; they
streamline processes for the transfer of land for the use of Academies,
with a power for the Secretary of State to direct spare school
land be made available to Free Schools. Complaints about Academies'
admissions will go to the Office of the Schools Adjudicator in
future.
13. Part 7: Post-16 education and training.
This Part abolishes the Young People's Learning Agency and makes
the Secretary of State responsible, through a non-statutory Education
Funding Agency, for funding Academies and all 16-19 provision
in schools, sixth form colleges and further education colleges.
It simplifies the complex performance management arrangements
for the 94 sixth form colleges in England, which currently involve
both the YPLA and local authorities and gives the Secretary of
State the power to tackle entrenched under-performance. It replaces
the duty on the Chief Executive of Skills Funding (SF) to provide
an Apprenticeship place to all suitably qualified young people
with a duty to fund their training as a priority when they have
secured an Apprenticeship place for themselves; changes the duties
and powers of the Chief Executive of SF; revises the skills entitlement
to free training to those up to 24-years-old; stops the automatic
commencement of the provisions enforcing the raising of the participation
age and keeps under review when they should be brought into force.
Raising the participation age will come into force as planned
in 2013 and 2015.
14. Part 8: Student finance. This Part raises
the cap on interest rates on new higher education student loans,
to enable more progressive graduate repayment arrangements to
be introduced and enables part-time undergraduate course fees
to be regulated within the same framework as full-time courses,
so that part-time course fees can be capped to the level of the
proposed loan for part-time students.
15. Part 9: Powers of National Assembly for Wales.
Clauses in this Part provide framework powers over teacher and
wider workforce registration, qualifications, careers and training
and school funding.
The United Nations Convention on the Rights
of the Child
16. Article 3 of the United Nations Convention on
the Rights of the Child (UNCRC) provides that in all actions concerning
children, whether undertaken by public or private social welfare
institutions, courts of law, administrative authorities, or legislative
bodies, the best interests of the child shall be a primary consideration.
By Article 3(2), States Parties undertake to ensure the child
such protection and care as is necessary for his or her well-being,
taking into account the rights and duties of his or her parents,
legal guardians, or other individuals legally responsible for
him or her, and, to this end, shall take all appropriate legislative
and administrative measures.
17. On 6 December, the Minister of State for Children
and Families, Sarah Teather MP, made a Written Ministerial Statement[33]
as part of the Government's response to the review of the role
and function of the English Children's Commissioner that was undertaken
by Dr John Dunford. In her statement, the Minister affirmed the
Government's commitment to the UNCRC. As well as agreeing in principle
to the recommendations of the Dunford review to strengthen the
role and remit of the Children's Commissioner for England to create
a stronger independent advocate for children's rights, the Minister
gave a commitment about the place of the UNCRC in the development
of Government policy. The Minister said, "I can […]
make a clear commitment that the Government will give due consideration
to the UNCRC articles when making new policy and legislation.
In doing so, the Government will always consider the UN Committee
on the Rights of the Child's recommendations but recognise that,
like other state signatories, the UK Government and the UN Committee
may at times disagree on what compliance with certain articles
entails."
18. The Government is a proud signatory of the UNCRC
and is committed to its implementation. The Government acknowledges
that it is important that the best interests of children continue
to be at the heart of policy making and that changes be assessed
with that in mind. The Government considers that in the preparation
of education policy, and in seeking to give effect to it through
the Education Bill, it has honoured that commitment.
19. The Department, led by the Minister for Schools,
Nick Gibb MP, held discussions with key groups from the children's
rights sector to discuss the themes of the White Paper, The
Importance of Teaching, which was published by the Department
in November 2010 and which sets out the principles and proposals
on which the Education Bill is founded.
20. The Bill demonstrates the Government's commitment
to children's rights. For example, clause 1 makes it possible
to introduce free early years provision for two-year-olds from
disadvantaged backgrounds which the Government considers will
help narrow the gap in levels of achievement between rich and
poor; the improvement of discipline and behaviour in schools that
the Government believes will result from reforms set out in Part
2 of the Bill will lead to lower levels of bullying and the restoration
of good order in the classroom, which in turn will help children
access their rights to an education; and the strengthening, in
Part 5, of powers to intervene in poorly-performing schools will
be of disproportionate benefit to poorer children and to those
with special educational needs. The Government is committed to
intervening in those schools that continually underperform. Article
28 UNCRC recognises a child's right to education and has been
concerned with inequalities with regard to school achievement
of children living in hardship.
21. While the Bill removes certain obligations and
duties from schools, such as the duty to co-operate with the local
authority to improve the well-being of children, or the duties
to have regard to the children and young people's plan (see clauses
30 and 31) the Government's view is that the imposition of such
duties is not the best way of serving the best interests of children.
The Government does not consider that schools need to be told
what to do about serving the best interests of children: rather
its view is that the reduction of such burdens provides an overall
benefit to children, and so secure the best interests of the child.
In this way, the Government considers that it is meeting its obligations
under Article 3. The duty on a governing body of a maintained
school to promote the well-being of pupils in the discharge of
their functions relating to the conduct of the school remains.
22. When proposing measures to enhance discipline
in schools, such as those in clause 2 (power of members of staff
at schools to search pupils) and clause 4 (exclusion of pupils
from schools in England: review) Ministers consider the rights
of all children. While Ministers do not consider that any of the
provisions incompatibly interfere with the rights of the children
directly affected by them, they are also concerned to protect
the rights of all children that can be affected by the ill discipline
of the few.
23. Ministers also acknowledge that within children's
rights lies the responsibility to respect the rights of others,
and that this should better enable children to act as young citizens
and reinforces the proper exercise of authority by parents and
other adults such as teachers.
24. Taking all this into account, the Government
is confident that the Bill is broadly within the general principles
of the UNCRC and seeks to represent the best interests of children
in accordance with Article 3 of the UNCRC as well as to ensure
that children are afforded the best education by giving every
child access to the best possible teaching.
Consideration of relevant clauses
Clause 1: Free of charge early years provision
25. Clause 1(2) amends section 7 of the Childcare
Act 2006 which, in its current form, requires English local authorities
to secure that certain early years provision is available free
of charge for certain young children in their area. "Early
years provision" is defined (in section 20 of the Childcare
Act 2006) as childcare for young children (broadly speaking, those
under the age of five). The Childcare Act 2006 defines "childcare"
in broad terms as meaning any form of care for a child, and as
including education and other supervised activities. For young
children, legislation requires the childcare to have an educational
element through the requirement on all early years providers to
ensure their provision meets the requirements of the Early Years
Foundation Stage which contains a series of education and development
requirements.
26. While the Government's policy is to maintain
a universal free entitlement for children aged three and four,
the effect of the amendment will be to enable regulations to extend
the requirement on local authorities to secure that free early
years provision for a targeted group of two-year-olds, such as
those who come from poorer families.
UNCRC
27. Article 28 of the UNCRC says that States Parties
recognize the right of the child to education. While the Article
refers in particular to primary, secondary and higher education
the Government considers that the provision of early years education
helps address the UN Committee's concerns about inequalities (which
relates to Article 2 UNCRC) with regard to the achievement of
children living with economic hardship and responds to their recommendation
about investing resources to ensure the right of all children
to a truly inclusive education (paragraphs 45 and 67 of the Committee's
concluding observations, 2008).
28. The aim of this provision is to extend
childcare provisions to under-3s from disadvantaged backgrounds.
This is also very much within the principles of Article 18
(2) and (3) of the UNCRC which is about assisting parents and
legal guardians in the performance of their child-rearing responsibilities,
ensuring the development of institutions, facilities and services
for the care of children and ensuring that children of working
parents have the right to benefit from child-care services
and facilities for which they are eligible.
ECHR
29, Article 2 of Protocol 1 of the ECHR provides
that "no person shall be denied the right to education".
The Government considers that to the extent that early years provision
is educational in nature, it might be argued that aspects of its
provision would engage Article 2 of Protocol 1. However, the Government
does not consider that Article 2 of Protocol 1 places a positive
obligation on a State to establish or subsidise a particular type
or level of education (Belgian Linguistics Case No. 2);
the primary focus of the right is to guarantee an equal right
of access to the educational facilities that exist at any particular
time.
30. The Government does not consider that the creation
of a duty on local authorities to secure that early years provision
is available free of charge for a certain category of two-year-olds
(as opposed to all two-year-olds) interferes with the right
enshrined in Article 2 of Protocol 1: the effect of the policy
proposal is not to limit access to childcare facilities to a particular
group of two-year-olds as the duty that section 7 of the Childcare
Act 2006 imposes on local authorities does not require them to
create provision that only eligible two year olds can access.
On the contrary, the policy seeks to ensure that two year olds
who are currently denied access to early years provision by virtue
of their economic circumstances get the same access as their more
advantaged peers. Childcare places for young children are already
available through a range of private, voluntary, and state providers.
Indeed, local authorities are under a duty (in section 6 of the
Childcare Act 2006) to secure that there are sufficient childcare
places available in the area to meet the needs of working parents
(and those in education or training) and will need to use their
powers to stimulate the childcare market if there is not sufficient
childcare available. In many cases, the child's parents must pay
for the provision unless it is in a maintained setting funded
by the State (for example, the nursery class of a maintained primary
school). Early years providers must operate in accordance with
the equality legislation in terms of access.
31. The duty that section 7 of the Childcare Act
2006 (and the regulations made under it) imposes on local authorities
is, therefore, not about creating provision that can only be accessed
by eligible two-year-olds. Rather, it requires the local authority
to fund a prescribed number of hours so that eligible children
can access these free of charge. The local authority will do this
in most cases by making payments to individual early years providers
to cover the costs of them providing free places for eligible
children for the prescribed number of hours. Non-eligible children
would also be able to access places at those providers, but would
not receive any hours free of charge.
32, The Government therefore does not consider that
this policy interferes with the right of equal access to educational
facilities, which is what Article 2 of Protocol 1 is intended
to protect. There is no discrimination in terms of access, albeit
that some children will benefit from a subsidised place. In fact,
the policy objectives behind this measure are to increase the
likelihood that disadvantaged children in the two-year-old age
group will be able to access formal childcare for a variety of
social policy reasons. There is clear evidence that the gap in
development between children from disadvantaged backgrounds and
their peers from more advantaged backgrounds starts from an early
age. Access to high quality early years education can help to
address this gap.
33. The Government has considered whether there is
an argument that the fact that only some two year olds will be
able to access free early years provision could engage Article
14, read with Article 2 of Protocol 1. The eligibility criteria
will be set out in regulations to be made under the new section
7 of the Childcare Act 2006 and they have yet to be settled. The
Government is doubtful whether a person's economic status would
be considered by the courts to be a status which Article 14 protects
but if Article 14 were held to be engaged, the Government considers
the Strasbourg case law shows that promoting services to disadvantaged
groups through affirmative action is compatible with Article 14
(Belgian Linguistics Case No. 2).
34. Article 14 does not prohibit a difference in
treatment to correct a factual inequality between one group and
another. In this context, the evidence shows that a lower proportion
of young children from disadvantaged backgrounds reach a good
level of development at age five compared with other groups (in
2010 only 39.5% for pupils known to be eligible for free school
meals reached a good level of development at age five compared
with 59.2% of other pupils). International research also shows
that whilst quality early education is good for all children,
it has a more significant impact for those children from disadvantaged
backgrounds. The policy to fund a certain number of free hours
of early years provision for the most disadvantaged two-year-olds
is underpinned by the legitimate aim of encouraging and facilitating
access to good quality early years provision for those children
otherwise least likely to get access to it or take it up. The
benefits of this would be improving their educational and social
development and narrowing the gap between this group and their
peers.
35. Accordingly, the Government considers that the
approach being taken is a proportionate response to these legitimate
aims. The entitlement will be to a part-time free place (equivalent
to 15 hours per week) and any additional provision would need
to be paid for by the parents, in the same way as parents of non-eligible
two-year-olds pay for their provision. Other two year olds will
continue to be able to access early years provision purchased
by their parents.
36. Clause 1(3) inserts new sections 13A and 13B
into the Childcare Act 2006, which relate to the new section 7
of the Childcare Act 2006 that is being inserted by clause 1(2).
37. New section 13A, inserted by clause 1(3) gives
the Secretary of State (in practice, the Secretary of State for
Work and Pensions) and the Commissioners for Her Majesty's Revenue
and Customs the power to supply information that they hold in
relation to social security and tax credits functions to the Secretary
of State (in practice, the Secretary of State for Education) and
to local authorities, to use to determine eligibility for free
early years provision (which will be set out in regulations made
under section 7). The information supplied pursuant to these powers
will be used by local authorities to check a particular child's
eligibility. A very similar system already exists for the purposes
of checking eligibility for free school meals, and new section
13A is based on section 110 of the Education Act 2005, which enables
the same information to be shared for the purposes of determining
eligibility for free school meals.
38. New section 13B provides that where a person
discloses information received from Her Majesty's Revenue and
Customs (HMRC) or the Department for Work and Pensions (DWP) under
section 13A, apart from in the circumstances set out in section
13B(2), he or she commits an offence. The circumstances set out
in section 13B(2) are where information is being passed on to
a local authority in accordance with section 13A(5), in the course
of a duty in connection with exercising functions relating to
determining eligibility, in accordance with an enactment or a
court order, or where consent to the disclosure has been given
by or on behalf of the individual.
39. The sharing of information about individuals
by DWP or HMRC, or onward supply of information to local authorities,
would engage Article 8(1) of the ECHR. The information would be
personal details and information relating to the receipt of tax
credits and social security benefits. However, an interference
with Article 8(1) can be justified in accordance with Article
8(2) and the Government considers that any interference in this
case will be necessary in a democratic society for the purposes
of the economic well-being of the country, since the purpose behind
the sharing of information is to ensure that local authorities
are easily able to establish whether a child is eligible for free
early years provision, and therefore reduce fraudulent claims
or mistakes as to eligibility. The measure is proportionate because
section 13A makes clear that the information can only be shared
and used for that specific purpose and no other purposes. In addition,
there is a safeguard built in because any unauthorised use or
disclosure will be deterred, or otherwise dealt with, by the criminal
offence created by section 13B. All parties will be data controllers
or data processors and therefore also subject to the requirements
of the Data Protection Act 1998 which will also help to ensure
compliance with Article 8(1).
40. New section 13B, described above, contains a
defence for a person who has disclosed information unlawfully,
if they can prove (on the balance of probabilities) that they
reasonably believed the disclosure to be lawful. This mirrors
the provision on disclosure in section 111 of the Education Act
2005 (which relates to free school meals).
41. Reverse legal burdens of proof have been considered
in the Strasbourg case law since they can engage Article 6 of
the ECHR, in particular the right under Article 6(2) that "everyone
charged with a criminal offence shall be presumed innocent until
proven guilty according to law". In some cases, the courts
have either found legal burdens of proof imposed on the defendant
to be incompatible with Article 6(2), or else have been willing
to "read down" a provision which purports to place a
legal burden of proof on the defendant so that it imposes only
an evidential burden on the defendant to adduce evidence which
is capable (if believed) of proving the fact or issue in question.
42. However, the courts have in some cases held reverse
legal burdens to be compatible with Article 6. In the case of
Sheldrake v DPP, the House of Lords held that, where the
matter that the defendant was required to prove was "a matter
so closely conditioned by his own knowledge and state of mind
at the material time as to make it much more appropriate for him
to prove on the balance of probabilities [that the defence applied]
than for a prosecutor to prove beyond reasonable doubt [that it
did not]", a reverse legal burden was not incompatible with
Article 6.
43. The seriousness of the offence and penalty are
also relevant to whether a reverse burden of proof is so unfair
as to offend against the right set out in Article 6(2). In the
case of section 13B, the offence that it creates is of unauthorised
disclosure of information. The prosecution have the legal burden
of proof in relation to the disclosure having taken place otherwise
than in any of the authorised circumstances set out in section
13B(2). The defence available to the defendant is based on his
state of mind when disclosing the information and on what he or
she believed about the lawfulness of that disclosure. The Government
therefore considers that it is more appropriate for the defendant
to have to prove, on the balance of probabilities, that she or
he reasonably believed the disclosure to be lawful, than for the
prosecution to have to prove beyond reasonable doubt that the
defendant did not reasonably believe the disclosure to be lawful.
This could be very difficult for the prosecution to do, with the
result that in many cases it would not be possible to convict
the defendant, even in those cases where it was more likely than
not that the defendant did not reasonably believe that the disclosure
was unlawful. The Government considers that the reverse burden
of proof in relation to this defence is proportionate and reasonable
in all the circumstances, strikes the right balance between the
public interest and the defendant's Article 6 rights, and does
not prevent a fair trial from taking place.
Clause 2 Power of members of staff to search pupils
44. Clause 2 amends the power that members of staff
in England have to search pupils under section 550ZA of the Education
Act 1996. That section already allows authorised staff to search
a pupil where they have reasonable grounds for suspecting that
the pupil may have a "prohibited item" with him or her
or in his or her possessions. Section 550ZA says what the "prohibited
items" are.
45. Clause 2(2)(a) amends section 550ZA(3) by adding
to the list of prohibited items "an article that the member
of staff reasonably suspects has been or is likely to be used
to commit an offence or to cause personal injury to, or damage
to the property of, any person (including P)". By subsection
(4A), inserted by clause 4(2)(c), the term "offence"
includes anything that would be an offence but for the operation
of any presumption that a person under a particular age is incapable
of committing an offence.
46. Clause 2(2)(b) adds to the list of prohibited
items "any other item which the school rules identify as
an item for which a search may be made". New subsection (4B)
inserted by clause 2(2)(c) defines school rules. For maintained
and non-maintained special schools (defined in subsection (4C))
they are rules determined and publicised under section 89 of the
Education and Inspections Act 2006; for all other schools they
are rules determined and publicised in accordance with regulations.
47. Clause 2(3) amends the supplementary provisions
in section 550ZB.
48. It amends section 550ZB(5) so that force cannot
be used to effect a search for an item under section 550ZA(3)(g).
It also provides that a person carrying out a search need not
be of the same sex as the pupil being searched if the searcher
reasonably believes that there is a risk that serious harm will
be caused to a person if the search is not carried out as a matter
of urgency and, in the time available, it is not reasonably practicable
for the search to be carried out by a person of the same sex as
the pupil. It also provides that another member of staff need
not be present during the search but only if the same condition
is satisfied.
49. Clause 2(4) amends section 550ZC (power to seize
items found during search under section 550ZA) to make provision
for the disposal of a seized item prohibited under section 550ZA(3)(ea)
and (g). In the case of a prohibited item under (g) the item must
be returned to its owner, retained or disposed of; in the case
of a prohibited item under (ea) the searcher must deliver the
item to a police constable as soon as reasonably practicable,
return it to the owner, retain it or dispose of it if. In both
cases, in determining what to do with the item, the person must
have regard to guidance issued by the Secretary of State.
50. Where the seized item is a prohibited item under
(ea) and is an electronic device then before retaining it, disposing
of it or returning it to its owner the searcher may examine any
data or files on the device if she or he has good reason to do
so, and may erase the data or files, again only if he or she has
good reason to do so. In deciding whether there is a good reason
the searcher must have regard to guidance issued by the Secretary
of State.
UNCRC
51. Supporting schools to improve behaviour and discipline
is a key priority for this Government. Article 28(2) of the UNCRC
states that all appropriate measures should be taken to ensure
that school discipline is administered in a manner consistent
with the child's human dignity. The UN Committee has also been
concerned that bullying is a serious problem which may hinder
children's attendance at schools and recommends efforts are intensified
to tackle bullying and violence in schools. Para 48e of their
concluding observations recommends that the State Party takes
measures and sets up adequate mechanisms and structures to prevent
bullying and other forms of violence in schools and include children
in the development and implementation of these strategies, in
light of the Committee's recommendations adopted at its day of
general discussion on violence against children within the family
and in schools.
52. Improving discipline and behaviour in schools
will lead to lower levels of bullying, which affects vulnerable
children in particular, and will enable all children to better
exercise their right to education under Article 28.1. By repealing
the requirement to give 24 hours notice of detention to parents
it will enable teachers to act quickly and effectively with pupils
who have misbehaved. Early effective discipline can help to avoid
exclusion as a disciplinary measure which is considered a last
resort by the UN Committee on the Rights of the Child.
53. The Government has also considered Article 16
of the UNCRC, which states that: "(1) No child shall be subjected
to arbitrary or unlawful interference with his or her privacy,
family, home or correspondence, nor to unlawful attacks on his
or her honour and reputation. (2) The child has the right to the
protection of the law against such interference or attacks."
The Government considers that the arguments in support of the
conclusion that the provisions of clause 2 are compatible with
Article 8 ECHR applies equally in terms of Article 16 UNCRC.
54. Children have a right to privacy under Article
16. The UN Committee recommends that the State Party ensures,
both in legislation and in practice, that children are protected
against unlawful or arbitrary interference with their privacy.
Giving teachers a more general power to search for any item they
believe can be used to cause injury or aid bullying of other pupils,
will enable them to protect the wellbeing of all pupils and best
interests of all children.
55. The Government also considers that the steps
that it is taking in this clause and elsewhere in the Bill to
enable schools to provide for an orderly and safe environment
for children meets the obligations in Article 16 to safeguard
the rights of all children to the protection of the law against
interference with his or her privacy and attacks on his or her
honour or reputation.
ECHR
56. The Government considers that the powers to search
pupils under section 550ZA of the Education Act 1996 engage, and
amount to an interference with, Article 8 but is of the view that
the interference created by the addition to the list of prohibited
items made by clause 2 is justifiable under Article 8(2).
57. Article 8(1) ECHR provides that everyone has
the right to respect for his private and family life, his home
and his correspondence. Article 8(2) provides that there shall
be no interference by a public authority with the exercise of
this right except such as is in accordance with the law and is
necessary in a democratic society in the interests of national
security, public safety or the economic well-being of the country,
for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms
of others.
58. In Niemietz v Germany (1992), the European
Court of Human Rights held that the concept of private life was
not susceptible to "exhaustive definition". The severity
of the adverse effects for the individual's moral or physical
integrity will determine whether the treatment is sufficiently
serious as to fall within the scope of Article 8. The Government
considers that the level of physical intrusion envisaged by these
search powers may be at the lower end of the scale of "physical
searches" compared to, for example, being required to remove
more than just outer clothing, being required to strip down to
underwear, and intimate body searches. (See Wainwright v UK
(2006) where visitors to a prison were required to undergo
a strip search and intimate body search, which was found to be
a breach of Article 8.) Nonetheless this type of physical search
without consent is more intrusive than searching conducted by
use of a "screening device" and may still involve a
degree of humiliation and embarrassment, as the search may be
conducted in front of peers, and could result in personal items
(for example, diaries or photographs) being examined by teachers.
59. The European Court of Human Rights has acknowledged
that the measures taken in the field of education may, in certain
circumstances, affect the right to respect for private life (Belgian
Linguistics Case No. 2(1968)). However, in Costello-Roberts
v UK (1993), which concerned corporal punishment in school
of a seven-year-old child, the Court said that not every act or
measure which may be said to adversely affect the physical or
moral integrity of the person necessarily gives rise to an interference
and that the sending of a child to school necessarily involves
some degree of interference with his or her private life. The
Court said (at paragraph 36) that it "does not exclude
the possibility that there might be circumstances in which Article
8 (art. 8) could be regarded as affording in relation to disciplinary
measures a protection which goes beyond that given by Article
3 (art. 3). Having regard, however, to the purpose and aim of
the Convention taken as a whole, and bearing in mind that the
sending of a child to school necessarily involves some degree
of interference with his or her private life, the Court considers
that the treatment complained of by the applicant did not entail
adverse effects for his physical or moral integrity sufficient
to bring it within the scope of the prohibition contained in Article
8. While not wishing to be taken to approve in any way the retention
of corporal punishment as part of the disciplinary regime of a
school, the Court therefore concludes that in the circumstances
of this case there has also been no violation of that Article)."
60. This case was determined some years ago, and
the Government considers that it must be arguable that the Court
considering such a case today would decide it differently. The
case of Gillan v UK (2010) before the European Court of
Human Rights concerned searches conducted under the police powers
set out in sections 44-47 of the Terrorism Act 2000. In its judgment
of January 2010, the European Court of Human Rights noted that
"there is a zone of interaction of a person with others,
even in a public context, which may fall within the scope of 'private
life'". It also set out its view that "a person's
reasonable expectations as to privacy may be a significant, though
not necessarily conclusive, factor.". The Court concluded
(at paragraph 63): "Irrespective of whether in any particular
case correspondence or diaries or other private documents are
discovered and read or other intimate items are revealed in the
search, the Court considers that the use of the coercive powers
conferred by the legislation to require an individual to submit
to a detailed search of his person, his clothing and his personal
belongings amounts to a clear interference with the right to respect
for private life. Although the search is undertaken in a
public place, this does not mean that Article 8 is inapplicable.
Indeed, in the Court's view, the public nature of the search may,
in certain cases, compound the seriousness of the interference
because of an element of humiliation and embarrassment. Items
such as bags, wallets, notebooks and diaries may, moreover, contain
personal information which the owner may feel uncomfortable about
having exposed to the view of his companions or the wider public."
61. In light of this judgment in particular, the
Government is of the view that searching pupils without consent
is sufficiently serious so as to amount to an interference with
their rights under Article 8.
62. As a search under these powers would constitute
an interference with a pupil's right to respect for private life
under Article 8, then the interference is justified by the terms
of paragraph 2 of Article 8 only if it is "in accordance
with the law", pursues one or more of the legitimate aims
referred to in paragraph 2 and is "necessary in a democratic
society" in order to achieve the aim or aims.
63. The Government considers that in the case of
the added prohibited item under section 550ZA(3)(ea) the wording
is sufficiently clear and precise to meet the test of being in
accordance with the law set by the Strasbourg Court. The Government
also considers that the power serves a legitimate aim under Article
8(2) that is to say for the prevention of disorder or crime or
for the protection of health or morals.
64. In determining whether the power to search is
necessary in a democratic society a court will weigh the reasons
presented against the nature and degree of the interference with
the individual's rights. It will also consider the existence of
procedural safeguards when assessing whether a measure is "necessary
in a democratic society." The new power to search is limited
to items that have been used to commit a crime or are thought
likely to be used to commit a crime. The power is to be subject
to the safeguards which are provided for in section 550ZB: the
search can only be carried out by the head teacher or someone
authorised by him or her to search; the search can only take place
on school premises or if elsewhere only when the member of staff
has lawful control or charge of the pupil concerned; the teacher
can only search if he or she has a reasonable suspicion that the
pupil is in possession of a "banned" item; the pupil
cannot be required to remove any clothing other than outer clothing;
and there must ordinarily be someone else present and the searcher
must ordinarily be of the same sex.
65. Accordingly, the Government considers that the
extended power to search in clause 2 amounts to a justifiable
interference with a pupil's Article 8 rights.
66. The second addition to the list of prohibited
items, in section 550ZA(3)(g) is any other item which the school
rules identify as an item for which a search may be made.
67. The Government considers that the provisions
in the Bill that give effect to this satisfy the requirement that
the interference which it amounts to be in accordance with the
law: the item can only be searched for if it is identified in
the school rules as an item that can be searched for. In the case
of a maintained school, those rules must be determined and publicised
by the head teacher in accordance with section 89 of the Education
and Inspections Act 2006 (EIA 2006) which imposes requirements
on the head teacher to make the rules (or measures as they are
called in that Act) generally known within the school and to parents
of children at the school, and in particular at least once in
every school year to take steps to bring them to the attention
of all pupils and parents. In determining measures the head teacher
must act in accordance with the statement of general principles
prepared by the governing body; and must have regard to any notification
or guidance received from the governing body. The governing body
when making or revising the statement of general principles is
required to consult the head teacher, parents and pupils and have
regard to guidance from the Secretary of State.
68. It is intended that the regulations made under
section 550ZA(4B)(b) should mirror the requirements in section
89 of EIA 2006.
69. The Government considers that where the ban is
under a power in EIA 2006 and has been publicised under section
89 of EIA 2006 there will be a proper legal basis for it, and
there will be sufficient accessibility and foreseeability for
it to be considered "in accordance with the law". The
Government considers that guidance on the use of such powers will
assist; the requirement to have regard to guidance is already
in section 88 EIA 2006 and it is intended to make similar provision
under the regulations.
70. The power to search under section 550ZA(3)(g)
will be for items that in themselves may well be innocuous. The
Government considers that a legitimate aim upon which it can rely
to justify this is the protection of the rights of others. In
particular, the Government relies on Article 8 which protects
a right to personal development, and the right to establish and
develop relationships with the outside world. Where the disruptive
school environment is such that those aspects of the Article 8
right are threatened the Government would argue that the rights
of others are engaged so steps to protect that right, in this
case by searching the pupil, meet a legitimate aim.
71. The Government considers that the power taken
under section 550ZA(3)(g) is necessary and proportionate. The
power is subject to the existing safeguards in sections 550ZA
and 550ZB referred to above. Furthermore, the power to use force
has been specifically excluded from the power to search under
section 550ZA(3)(g). This power to use force is found in section
550ZB(5) and applies to searches for other items; but where, as
here, the search is for an item that is not intrinsically harmful
then to be proportionate the Government accepts that the power
cannot be supported by the use of force.
72. The Government intends to produce guidance under
section 88(4) of the 2006 Act, and under regulations, that will
explain the nature of the obligations under Article 8(2) of necessity
and legitimate aim that are applicable.
73. Section 550ZB(6) of the Education Act 1996 currently
requires that the person conducting the search under section 550ZA
must be of the same sex as the pupil being searched and that the
search take place in the presence of another member of the school
staff who is also of the same sex as the pupil if that is reasonably
practicable, this latter modification being made to address concerns
that have been raised about the practical difficulties of ensuring
that the witness to the search is the same sex as the pupil for
searches conducted in primary schools (where there are few male
staff) and on school trips.
74. Clause 2(3) amends section 550ZB by inserting
a new subsection (6A) which provides that a person carrying out
a search of a child under section 550ZA need not be of the same
sex as the child if the person reasonably believes that there
is a risk that serious harm will be caused to a person if the
search is not carried out as a matter of urgency and in the time
available it is not reasonably practicable for the search to be
carried out by a person of the same sex as the child.
75. Similar provision is made to relax the requirement
to have another member of staff present.
76. The provision would have most impact in primary
schools where, as discussed above, there is often a lack of male
teachers. The Government envisages that in practice it would be
on very rare occasions that secondary school teachers would undertake
a search of a pupil of the opposite sex.
77. The Government considers that there would be
circumstances in which it will not be practicable for a member
of staff of the same sex to be found if there is an element of
urgency based on risk of harm. The Government's view is that the
circumstances in which the searcher can search a child of the
opposite sex are sufficiently tightly drawn to make this provision
compatible with Article 8: the searcher has reasonably to believe
that there is a risk that serious harm will be caused to a person
(not property) if the search is not carried out urgently; and
in the time available it is not reasonably practicable for the
search to be carried out by a person of the same sex.
78. Clause 2(4) amends section 550ZC (power to seize
items found during search under section 550ZA) by inserting provisions
regarding the disposal of items found in exercise of a search
under new section 550ZA(3)(ea). The Government considers that
where an item is handed to the police, retained or disposed of
this may amount to a deprivation of property for the purposes
of Article 1 of Protocol 1 (A1P1).
79. A1P1 says: "(1) Every natural or legal person
is entitled to the peaceful enjoyment of his possessions. No one
shall be deprived of his possessions except in the public interest
and subject to the conditions provided for by law and by the general
principles of international law. (2) The preceding provisions
shall not, however, in any way impair the right of a State to
enforce such laws as it deems necessary to control the use of
property in accordance with the general interest or to secure
the payment of taxes or other contributions or penalties."
80. While the seizure of a prohibited item from a
pupil amounts to a deprivation of property and potentially interferes
with Article 1 of Protocol 1, the Government would argue that
in relation to an item used or to be used to commit a crime there
are arguments that any interference is justified and proportionate.
Deprivation will prevent the commission, or continued
commission, of a criminal offence; and may prevent harm being
caused to pupils. Because of the risks to the safety of pupils
and others and of the disorder that could result from allowing
pupils to have on them such items, seizure of these items is a
proportionate response.
81. For items handed over to the police, the Police
(Property) Act 1897 (disposal of property in the possession of
the police) will apply to property which has come into the
possession of a police constable under these provisions. This
allows a Magistrates Court to make an order that property in police
possession be delivered to the person appearing to be the rightful
owner.
82. It is not envisaged that compensation will be
paid where prohibited items are seized. Although Article 1 Protocol
1 does not expressly require the payment of compensation to a
person deprived of property, compensation is generally required
in all but the most exceptional circumstances (see Lithgow
v United Kingdom (1986) 8 EHRR 329), and the taking of property
without payment will normally constitute a disproportionate interference.
However, legitimate objectives of public interest, such as measures
to achieve social justice, may call for less than reimbursement
of the full market value (James v United Kingdom (1986)
8 EHRR 123 ECtHR). Provided the state can properly take the view
that the benefit to the community outweighs the detriment to the
individual, a fair balance will be struck without any requirement
to compensate the individual (R (Trailer & Marina (Leven)
Ltd) v Secretary of State for the Environment, Food and Rural
Affairs [2005] 1 WLR 1267).
83. In some circumstances the item seized will be
such as not to warrant such a drastic response—in the case
of electronic devices such as mobile phones and mp3 players, for
example, it may be more proportionate to confiscate the item and
return it at the end of the day. In that case, Article 1 of Protocol
1 rights may not be not engaged at all. If they are then the Government
considers that such circumstances would be likely to amount to
an interference with enjoyment under Article 1 Protocol 1 rather
than a control of use because the items would only be taken temporarily
for the duration of the school day. The Government considers however
that such interference would be proportionate and justified given
the very limited duration and the aim of preventing crime and
harm to others.
84. Clause 2 provides that in the case of an electronic
device searched for under section 550ZA(3)(f) the searcher may
examine any data or files on the device if he or she thinks there
is good reason to do so; the person may also erase the data or
files if he thinks there is good reason to do so. In deciding
whether there is good reason to do so the person must have regard
to guidance from the Secretary of State.
85. The intention behind this provision is to allow
the searcher to see whether there are, for example, any images
of bullying or threatening messages that show that the device
is being used for cyber-bullying. The power to examine and erase
data engages Article 8 and is justifiable to meet the legitimate
aim of preventing and detecting crime and the protection of the
rights of others. The Secretary of State will issue guidance in
connection with the exercise of this power to meet concerns about
the possible misuse of the power.
Clause 3: Power of members of staff at further
education institutions to search students
86. Clause 3 makes similar provision in relation
to further education and sixth form colleges as are made by clause
2 in relation to schools. The power to search is not extended
to search for items banned under the college's rules. The arguments
in support of compatibility with this clause are the same as the
arguments set out above in relation to clause 2.
Clause 4: Exclusion of pupils from schools in
England: review
87. Clause 4 makes new arrangements for England only
in relation to the exclusion of pupils from maintained schools
and pupil referral units. Subsections (1) and (2) of new 51A Education
Act 2002 will give head teachers of maintained schools power to
exclude any pupil from the school on disciplinary grounds and
gives the same power to teachers in charge of pupil referral units.
This is the same as current arrangements. The remainder of the
new section provides for the procedures that relate to the exclusion
of pupils, including arrangements for reviewing exclusion decisions
within a school (which will reflect current arrangements) and
providing for an independent review of any decision not to reinstate
the pupil in question. The independent review is new and replaces
the independent appeal that exists currently. The new review panel
will be constituted very similarly but its powers will change.
The most significant change will be that the review panel will
have no power to direct reinstatement of a pupil as an appeal
panel has currently. The review panel will have power to: uphold
a decision of a governing body; direct a governing body to look
again at its decision not to reinstate where it considers that
the decision was flawed in the light of the principles applicable
on an application for judicial review; order an adjustment of
the school's budget in particular circumstances; and ask a governing
body to look again at its decision where it has concerns. There
is a power to make regulations in relation to supplementary powers
for the panel and it is intended to use this to provide that a
panel may add to a pupil's record that the panel considers that
the decision of the governing body to exclude was flawed.
88. Article 2 Protocol 1 ECHR provides that, "No
person shall be denied the right to education. In the exercise
of any functions which it assumes in relation to education and
to teaching, the State shall respect the right of parents to ensure
such education and teaching is in conformity with their own religious
and philosophical convictions." The duty under section 19
Education Act 1996 provides that every local authority must make
arrangements for the provision of suitable education at school
or otherwise than at school for those children of compulsory school
age who, by reason of illness, exclusion from school or otherwise,
may not for any period receive suitable education unless such
arrangements are made for them. Under section 19(3A) of the Education
Act 1996 this duty is to provide full time education for permanently
excluded children from a day specified in regulations (currently
the sixth day of exclusion—see SI 2007/1870). Therefore,
a permanently excluded child will not be denied the right to education.
89. Further, Article 2 Protocol 1 ECHR does not provide
a general right to education of any particular quality or at any
particular school. Case law suggests that education authorities
have considerable latitude when exercising disciplinary functions
before they will be held liable for breaching the right of access
to education. The Government therefore considers that Article
2 of Protocol 1 is not engaged.
90. The Government also considers that Article 6
ECHR is not engaged because exclusion is not determinative of
a civil right (see for example R (on the application of B)
v Head Teacher of Alperton Community School [2001] EWHC 229
(Admin)). In the case of R (on the application of LG) v The
Independent Panel for Tom Hood School and Another [2010] EWCA
Civ 142, the Court of Appeal concluded that Independent Appeal
Panels do not determine civil rights or criminal charges: a decision
on permanent exclusion would only decide where a child will attend
school or receive education otherwise than at school. If Article
6 were engaged, the Government's view is that the review board
(independent from both school and the local authority and which
provides for an independent review of the facts) coupled with
judicial review is adequate and sufficient to satisfy the courts
following case law in this area (see Tsfayo v UK [2007]
LGR 1).
91. In R (B) v Head Teacher of Alperton Community
School [2001] EWHC 229, the Claimant also sought to argue
that a refusal to reinstate following exclusion breached the Claimant's
right under Article 8 to a fair or good reputation. The argument
was that the decision by an Independent Appeal Panel not to reinstate
a pupil who had been excluded for bullying constituted an interference
in that individual's private life and that, in particular, it
affected his reputation for the rest of his career such that he
had to be able to challenge it before an Article 6 tribunal. The
Court rejected that argument on the basis that exclusion proceedings
are not directly decisive of reputation and the potential to cause
damage had been recognised by the procedure. The Court is required
to look at the overall matter being determined: here it is where
and how education will be received.
Clause 5: Repeal of requirement to give notice
of detention to parent
92. Clause 5 removes the requirement at section 92(3)(d)
of the Education and Inspections Act 2006 (EIA 2006) that a parent
of a pupil in England must be given 24 hours' written notice that
their child is required to attend a detention outside school sessions.
Provisions at section 90 EIA 2006 set out what is meant by a "disciplinary
penalty" in the context of schools (defined by section 4
Education Act 1996) and section 91 sets out what schools must
do to ensure that those disciplinary penalties are lawful. There
are additional conditions required where the penalty is to be
a detention outside normal school sessions.
93. Article 8 ECHR is likely to be engaged in relation
to any pupil punishment which means that the pupil is detained
at school after the normal school hours. The European Court has
accepted that attendance at school may engage Article 8 but that
it can be justified on various grounds such as protecting the
economic well-being of the country and for the protection of health
or morals. The Government would argue that a system of detention
outside of school hours is simply an extension of, and therefore
part of, the necessary interference of the school day. Detention
is an inherent part of a school's disciplinary system and therefore
does not require separate justification. While schooling engages
Article 8, it is necessary and justified for the reason identified
above. The imposition of detention without notice is just one
aspect of the disciplinary system, which extends the Article 8
infringement, but can be justified for the same reasons as a system
of schooling.
94. In addition, the statutory framework (at sections
91 and 92 without the requirement at section 92(3)(d) that is
being repealed here) provides for clear and transparent rules
with a view to ensuring that any disciplinary penalty is necessary
to ensure good discipline and therefore an effective system of
schooling. In particular, schools are required to ensure that
the penalty is reasonable in all the circumstances (section 91(3)(b))
taking into account whether the penalty is proportionate (section
91(6)(a)) and any special circumstances which are known or ought
to have been known including the pupil's age, any special educational
needs, any disability and any religious requirements which affect
him/her (section 91(6)(b)). The school is also required to ensure
that parents know that detention outside school hours may be used
(section 92(3)(b)) and to take into account particular travel
issues where relevant (section 92(5)). The policy intention behind
this clause is to ensure that schools have the freedom to punish
pupils where appropriate by detaining them outside school hours
on the same day as the decision was taken to punish them. The
delay in being able to impose the punishment is seen to water
down its impact considerably. Further, the Government does not
consider that the requirement to provide 24 hours' written notice
actually adds any particular safeguard in ECHR terms.
Clause 8: Functions of Secretary of State in relation
to teachers
95. Clauses 7 to 12 concern the abolition of the
GTCE and the establishment of the new system for teacher regulation
to replace it.
96. Clause 10 inserts new section 141B into the Education
Act 2002. Section 141B gives the Secretary of State the power
to investigate cases where it appears to him that a teacher at
a school, sixth form college, relevant youth accommodation (youth
custody) or a children's home in England may be guilty of unacceptable
professional conduct or to have been convicted of a relevant offence.
The Secretary of State may investigate such disciplinary cases
under new Schedule 11A to the Education Act 2002, inserted by
section 141B(3). If he finds that there is a case to answer, he
must decide whether to make a prohibition order in respect of
the person. The effect of such an order will be to prohibit the
person from being employed to carry out teaching work in the institutions
mentioned above. The person's name will be entered on the prohibited
teachers list, to be kept by the Secretary of State under clause
141C. Under regulations to be made under Schedule 11A he will
be able to apply for his name to be removed from the list.
97. None of these provisions is new. Schedule 11A
is based heavily on Schedule 2 to the Teaching and Higher Education
Act 1998.
98. The potential for a teacher to be prohibited
from teaching unsupervised in the institutions mentioned above
potentially engages Convention rights. The Government has considered
the application of Article 6 to decisions of the Secretary of
State to place a teacher on the prohibited list. Paragraph 4 of
new Schedule 11A to the Education Act 2002 will require the Secretary
of State, when making regulations about the determination of disciplinary
cases, to make provision conferring on a person to whom a prohibition
order relates a right of appeal against the order to the High
Court. This is the same as the arrangements which currently exist
in respect of appeals against decisions of the GTCE under Schedule
2 to the Teaching and Higher Education Act 1998. Such appeal regulations
could provide that the existing right to practice would not be
affected until any appeal had been dealt with or the relevant
time limit had expired, other than in extreme cases requiring
the protection of children.
99. The Government considers the fact that the Secretary
of State is required to confer a right of appeal is sufficient
for the purposes of Article 6. Clearly, as the Secretary of State
regulates the appeal system he will have to ensure that regulations
are Article 6 compliant and that appropriate safeguards are put
in place to ensure a fair appeals process. When designing the
appeal system the Secretary of State will keep in mind the decision
of the Court of Appeal in Kulkarni v Milton Keynes Hospital
NHS Foundation Trust and Secretary of State of Health [2009]
EWCA Civ 789, and in particular the observations of Smith LJ that
it would have been contrary to Article 6 to deny the doctor in
that case legal representation in his disciplinary appeal as the
allegations were quasi-criminal and the effect of the finding
would be that he would be unable to practice his profession.
100. Decisions of the Secretary of State or any person
to whom he delegates functions under the regulations are also
subject to judicial review, providing a further route of redress.
Additionally, a teacher who is placed on the prohibited list will,
as at present, be able to apply for their name to be removed after
a specified period of time.
101. The Government has also considered the application
of Article 1 Protocol 1 in relation to whether being permitted
to teach in the institutions mentioned above might be a possession.
The Government has concluded that it would not, as it would affect
anticipated future income rather than any present legal entitlement
or professional goodwill. No economic rights attach to it other
than the ability to hold certain types of employment in the future.
Again, there is no change here from the present position in that
teachers can be barred from teaching currently. Even if it were
considered to be a possession, regulation of this nature would
come within the right of the State to enforce laws to control
the use of property in accordance with the general interest and
thus be justified under the second paragraph. In any event, the
Government does not consider that this raises any separate issues
to Article 6.
102. The clauses also include several provisions
which concern the sharing of information concerning teachers.
103. The restricted list under clause 141C is to
be available for inspection by members of the public. Although
the equivalent list is not currently available for inspection,
GTCE decisions are readily available on their website, so the
same information can be easily obtained.
104. Under clauses 141D and E, where an employer
or an agency has ceased to employ a teacher on grounds of serious
misconduct, or might have done so had the teacher not resigned,
the employer is required to consider whether it would be appropriate
to provide relevant information to the Secretary of State. These
provisions are less stringent than those presently in place are,
when referrals must be made in the case of dismissal for misconduct,
professional incompetence, or conviction of a relevant offence.
The Government considers that they potentially raise issues under
Article 8 but that, particularly given that they are restricted
to cases of a serious nature, they are justified.
Clause 11: Abolition of the GTCE: consequential
amendments
105. Clause 11 makes consequential amendments. Under
paragraph 1 of Schedule 1, the Safeguarding Vulnerable Groups
Act 2006 is amended so that the Secretary of State will be under
a duty to provide prescribed information about teachers to the
Independent Safeguarding Authority (ISA) if there is a risk of
harm to children. He will also be under a duty to provide information
about teachers to ISA on request. Finally, the ISA must provide
relevant information to the Secretary of State. This mirrors the
present position regarding the exchange of information between
GTCE and the ISA.
106. The Government considers that the information
sharing provisions and the availability of the prohibited list
for inspection potentially engages Article 8. However, any interference
with private life would be justified as necessary and proportionate,
within the provisions of Article 8(2), in pursuit of the legitimate
aim of ensuring that a narrow category of information concerning
teachers is available to those with a justifiable interest in
it and is shared appropriately between the various agencies who
may have access to it. Again, they simply re-enact (and in some
cases narrow) existing provisions, in respect of which there has
been no judicial criticism to date on this basis.
Clause 13: Restrictions on reporting alleged offences
by teachers
107. Clause 13 inserts new sections 141F, 141G and
141H into part 8 of the Education Act 2002. New section 141F applies
where a person who is employed or engaged as a teacher at a school
is the subject of an allegation, made by or on behalf of a registered
pupil at the school that the person is guilty of a relevant criminal
offence (defined in section 141F(10)). By section 141F(2) no matter
relating to the person is to be included in any publication if
it is likely to lead members of the public to identify the person
as the teacher who is the subject of the allegation. Section 141G
makes it an offence to breach such reporting restrictions. Section
141H sets out defences.
108. Article 10 is engaged, and Article 10 rights
will be interfered with, by the provision imposing reporting restrictions
that would prevent publication of any information capable of identifying
a teacher. The restriction will apply if allegations have been
made that a relevant criminal offence has been committed—a
relevant offence being one where the alleged victim is a pupil—and
will last until criminal proceedings are instituted. The provision
will create a criminal offence of breach of the reporting restrictions.
However, the Government is satisfied that any interference is
justified under Article 10(2) as a necessary and proportionate
means of achieving the legitimate aim of protecting the reputation
and rights of teachers and supporting teachers in their role as
the professionals responsible for classroom discipline.
109. The European Court of Human Rights has found
that interference with qualified rights may be "necessary
in a democratic society" where there is a "pressing
social need" but the interference must "be proportionate
to the legitimate aim pursued" (Handyside v UK 7 December
1976 and Silver v. UK 25 March 1983). The Government is satisfied
that this provision does answer a "pressing social need"
and is "proportionate to the legitimate aim pursued".
Teachers are responsible for the discipline of pupils in their
classrooms and in their schools and this includes on occasion
needing to restrain violent or potentially violent pupils. Given
this particular role, teachers are particularly vulnerable to
false allegations from pupils.
110. The Government has evidence from teachers' trades
unions (in particular NASUWT[34]
and ATL[35]) that the
number of allegations against teachers has significantly increased
in recent years and in the overwhelming majority of these cases,
the allegations are not substantiated and a significant number
are false, and made by pupils in an attempt to avoid disciplinary
sanctions for poor behaviour. Teachers who are the subject of
false allegations have suffered significant negative impact on
their lives and careers in cases where the allegation has been
publicised at an early stage, breaching their Article 8 rights.
The Government is satisfied that this provision is necessary to
protect the rights and reputation of teachers and is therefore
justified under Article 10(2).
111. The protection of the Article 8 rights of teachers
raises potential arguments under Article 14 that the protection
afforded to teachers is discriminatory on the grounds of "other
status" (namely profession) against other professions who
may argue that they are equally vulnerable to false allegations
and the impact of reports of such allegations in the Press. However,
the Government is satisfied that the arguments set out above as
to the particular vulnerabilities of teachers and the importance
of their role with responsibility for classroom discipline support
an argument that the different treatment of teachers in this provision
can be objectively justified and pursues a legitimate aim of maintaining
classroom discipline. The Government notes that the European Court
will generally respect the legislature's policy choices in this
regard unless they are "manifestly without reasonable foundation"
(Stec and Others v. the United Kingdom ECHR 2006).
112. There are no effective remedies to protect the
rights and reputations of teachers subject to false allegations.
Protections in place to regulate the reporting of unsubstantiated
allegations, such as civil proceedings for defamation, complaints
to the Press Complaints Commission ("PCC") for breaches
of the Editors' Code of Practice,[36]
proceedings for breach of confidence, in which Convention rights
would need to be considered by the Court, are not adequate safeguards
given the position of teachers and the number and nature of the
allegations they face. Defamation is in essence a reactive remedy
and therefore cannot protect teachers from the damage done by
the reporting of false allegations. Further, the media will have
a defence in defamation proceedings that the report is true and
defamation proceedings therefore offer no protection where a report
states that an allegation has been made and does not assert that
the allegation is true, even though the damage to the teacher's
career may be done simply by the allegation becoming public knowledge,
particularly when it has yet to be substantiated. The Government
is also satisfied that the cost and complexity of defamation proceedings
means that this is not an avenue open to most teachers who are
the subject of false allegations. Similar arguments apply in relation
to breach of confidence in that a teacher would have difficulty
establishing the tort and also that there is a broad defence of
public interest and the cost and complexity of the case will prevent
most teachers from pursuing such a cause of action. The Government
is also satisfied that complaints to the PCC for alleged breaches
of the Editor's Code of Practice are also ineffective because,
again, this is in essence a reactive remedy and the Editor's Code
is not sufficiently robust or clear to prevent publication in
many cases or to found a successful complaint to the Press Complaints
Commission. The lack of complaints relating to press reports about
teachers made to the PCC indicates that teachers do not perceive
this to be an effective remedy, or even one, which is open to
them in cases where the reporting of an allegation may be factually
correct, even if the allegation itself is false. Defamation proceedings,
complaints to the PCC and proceedings for breach of confidence
do not take account of the particular vulnerability of teachers
to false allegations made by pupils. They therefore do not provide
adequate deterrents to the reporting of similar cases in the future
or adequate safeguards to protect teachers from damage to their
reputation and from the distress caused by false allegations.
Once allegations have been reported, the damage to the teacher's
professional reputation can be irreparable and therefore the mere
threat (explicit or implied) by a pupil that such an allegation
will be made can in some circumstances succeed in undermining
classroom discipline.
113. The Government is clear that any restrictions
on the right to freedom of expression in Article 10 must be proportionate
and limited to what is necessary to meet the pressing social need
identified above. Any offence needs to be clearly framed so that
there can be no doubts about the circumstances in which reporting
restrictions apply and therefore when a criminal offence will
be committed. For these reasons, reporting restrictions are very
narrowly drafted.
114. Reporting restrictions under these provisions
will cease when proceedings are instituted in a court (i.e. once
an independent assessment has been made by the Crown Prosecution
Service that there is evidence to support the allegation and the
teacher has been charged with an offence). In the examples that
the Government has of allegations against teachers being published
before charge, the Government is satisfied that in the majority
of cases there was no overriding public interest in allegations
being reported by the Press before there was sufficient evidence
to charge the teacher with an offence. In those exceptional cases
where there is an overriding public interest in publicising allegations
at an early stage, for example where a teacher, who may pose a
risk of harm to children, has fled and the Police need the help
of the public to locate him, the Government has made provision
for anyone to apply to the Court for reporting restrictions to
be lifted where it is in the interests of justice to do so.
115. The Government is satisfied that these measures
ensure that this is a proportionate response to the problem in
that it balances the public interest in genuine cases of misconduct
by teachers being reported by the media against the need to support
teachers' authority in the classroom and protect their reputations
and rights under Article 8 by preventing unfounded, false or malicious
allegations being publicised, where there are no other effective
protections for teachers who are falsely accused of harming a
pupil.
116. Article 6 may also be engaged by the fact that
new section 141H(1) imposes a legal burden of proof on the defendant
to establish the defences to an offence under new section 141G.
The issues surrounding reverse legal burdens have been considered
above (at paragraph 41). The Government is satisfied that in the
case of section 141H, it is appropriate to impose a legal burden
and it is compatible with Article 6(2) to do so. Given the nature
of the defences in new section 141H(2)(a) and (b) particularly,
which relate to the knowledge of the defendant at the time that
the identifying information was published, the Government is satisfied
that these fall within the type of defence described by their
Lordships in Sheldrake v. DPP; the defence in new section
141H(2)(c) requires evidence that written consent has been obtained.
As this will impose a largely evidential burden, rather than a
legal burden on the defendant, the Government is satisfied that
it is compliant with Article 6 to extend the legal burden to this
section also.
117. The Government has also considered Article 13
of the United Nations Convention on the Rights of the Child (UNCRC).
This guarantees the child's right to freedom of expression and
the Government relies on the same arguments, as those set out
above in respect of Article 10 ECHR, in concluding that the restrictions
to be imposed are necessary and proportionate under Article 13(2)
UNCRC. The Government is satisfied that this provision will not
discourage children from reporting genuine cases of abuse by teachers
and mechanisms for facilitating reporting through the appropriate
channels will be entirely unaffected by this provision. The reporting
restrictions will simply limit the possibility of the case being
widely publicised until it is established that there is good evidence
that the allegations may be well-founded.
Clause 26 Education and training support services
118. Clause 26 amends Part 2 of the Education and
Skills Act 2008 ("ESA 2008") which is concerned with
education and support services in England. The only part of clause
26 that raises any human rights issues is subsection (5) which
amends section 76A of the ESA 2008.
119. Section 76A of ESA 2008 relates to personal
information of 13-19-year-olds obtained in respect of the "Connexions
services", which are for example services provided under
section 68 or 70(1)(b) of ESA 2008 in relation to the education
and training of young people and relevant young adults. The providers
of Connexions services are either local authorities or persons
providing these services on their behalf. Section 76A(5) prohibits
the disclosure of some of this information in certain circumstances
in a way that the identity of an individual to whom it relates
is revealed. Clause 26(5) removes this prohibition. For the reasons
more fully explained below, the Government is of the opinion that
this clause engages Article 8 of the ECHR and Article 16 of the
Convention on the Rights of the Child. However, the Government
considers that in the case of Article 8 any interference is justified;
and that rights under Article 16 are not breached.
120. Section 76A of ESA 2008 operates in the following
way: Section 76A(1) allows the Secretary of State to arrange with
another person for that person to hold and supply information
in connection with or for the purposes of the provision of Connexions
services. In reality, this person is the contractor who operates
the National Client Caseload Information System ("NCCIS")
database—a database containing information about individuals
who use the Connexions services. Hereafter the contractor is referred
to as "the NCCIS contractor".
121. Section 76A(3) allows anyone holding "relevant
information" as defined in the section to supply this information
to: (a) the Secretary of State, or (b) the NCCIS contractor. Relevant
information is information about a person to whom Connexions services
are provided or obtained in connection with providing the Connexions
services, referred to hereafter as "Connexions services information".
122. If information is supplied under section 76A(3)
to the Secretary of State or the NCCIS contractor, section 76A(4)
allows them to pass it on to anyone involved in the provision
of Connexions services, for the purposes of Connexions services.
This would include Connexions services providers themselves, but
also others involved in any way in the provision of the services.
123. Section 76A(5) contains provision about what
can be done with Connexions information once it has been passed
to Secretary of State or the NCCIS contractor under section 76A(3).
Its effect is that the Secretary of State or the NCCIS contractor
is not allowed to pass this information on to each other in such
a way that the identity of the individual to which it relates
is revealed. This is subject to subsection (4)— so section
76A(4) does permit disclosure by the Secretary of State or NCCIS
contractor to a Connexions service provider (or other person involved
in the provision of the services) in such a way that reveals an
individual's identity.
124. The effect of this clause in the Bill will be
to repeal section 76A(5) so that the restriction on the onward
disclosure of information received under section 76A(3) by the
Secretary of State or the NCCIS contractor to each other in a
way that identifies individuals is removed. For the sake of clarification,
the existing provisions of section 76A(3) already allow anyone
holding Connexions information to pass this to the Secretary of
State or the NCCIS contractor without any prohibition on this
identifying individuals. It is therefore technically lawful for
the NCCIS contractor or Secretary of State to pass such information
to each other in a way that identifies individuals under section
76A(3), it is only where such information has already been passed
to the Secretary of State or the NCCIS contractor by another person
under section 76A(3) (for example by a Connexions services provider)
that there is currently a prohibition on the onward disclosure
(to the NCCIS contractor or the Secretary of State) in a way that
identifies individuals.
125. The Government believes that this clause engages
and potentially interferes with Article 8(1) of the ECHR as it
potentially allows the sharing of individuals' personal information
without their consent. However, such interference is justified
under Article 8(2) as it is necessary in a democratic society
in the interests of the economic well-being of the country.
126. The reason this clause in the Bill is required
is to make it easier for the NCCIS contractor and the Secretary
of State to share information about individuals who use the Connexions
services. It is necessary for the shared information to identify
individuals so that the Connexions information can be "matched"
to other information held by the Secretary of State in relation
to the individuals. This will enable the Secretary of State to
form a "joined-up" view of individuals' progression
through education and in particular to assess the performance
of educational and training institutions by ascertaining what
happens to individuals after they have left school or college,
particularly their success or otherwise in gaining employment
as information about their "employment destinations"
is contained within the Connexions information. The Government
consider this to be in the interests of the economic well-being
of the country.
127. The Government is also of the view that any
interference in Article 8(1) rights is proportionate in view of
the legitimate interests being pursued. The information that is
intended to be shared will not include any "sensitive"
information but just details of the individuals' current "activity"
(e.g. whether in education, training, employment, NEET, etc) as
well as information identifying them consisting of: date of birth,
Unique Pupil Number, Unique Learner Number, name and address.
128. The Secretary of State could obtain such information
from individual Connexions services providers under the existing
provisions of section 76A(3), but it is felt that this would be
extremely burdensome on the providers (who are either local authorities
or other persons providing such services on their behalf) as well
as being very costly. Obtaining such information from the NCCIS
contractor is the least costly and least burdensome method of
doing this.
129. It is also necessary to allow such information
to be passed from the Secretary of State to the NCCIS contractor
in case there is a need for Secretary of State to populate the
NCCIS database with education and training data that it holds,
so as to ensure that the database is as accurate and up to date
as possible.
130. The only change made by this clause is where
such information has already been passed to the Secretary of State
or the NCCIS contractor by another person under section 76A(3)
(e.g. by a Connexions services provider) the current prohibition
on the onward disclosure to the NCCIS contractor or the Secretary
of State in a way that identifies individuals will be removed.
It will be seen therefore that the clause only makes a very small
change to the status quo.
131. In addition, the clause will only permit Connexions
information being shared between the NCCIS contractor and the
Secretary of State in a way that identifies individuals—the
existing restrictions preventing such information being shared
more widely will remain. Section 76(A)(6) also provides that nothing
in that section authorises the disclosure of any information in
contravention of any provision of, or made under, ESA 2008 or
any other Act which prevents disclosure of the information. This
makes it clear that, for example, the protection to "personal
data" under the Data Protection Act 1998 will apply to section
76A.
132. The Government considers that Article 16 of
the UNCRC is engaged. However, for the same reasons as to why
Article 8(2) of the ECHR justifies any interference with individuals'
rights under Article 8(1), the Government does not believe that
there would be any arbitrary or unlawful interference with individuals'
privacy under Article 16, and therefore is of the opinion that
that the UNCRC would not be breached in this regard.
Clause 56 Transfer of property, rights and liabilities
to Academies
133. This clause amends the existing provision regarding
the Secretary of State's power to make schemes for transfer of
property, rights, and liabilities so that it expressly includes
staff rights and liabilities. The Government has considered A1P1,
but as the Government think this just applies to maintained schools
(including voluntary and foundation) the Government does not think
a private legal entity is affected, so the Government does not
consider that this clause raises any human rights issues.
134. There is also a power for the Secretary of State
to direct transfer of property, rights, and liabilities in paragraph
13 of new Schedule 1 to the Academies Act 2010, inserted by Schedule
13 to this Bill but the same arguments apply.
Clause 59 Academies: land and Schedule 13
135. Clause 59 and Schedule 13 make provision about
land in relation to Academies. They re-enact and amend existing
provisions in Schedule 35A to the Education Act 1996, incorporating
them into a replacement Schedule 1 to the Academies Act 2010,
which incorporates and amends provisions from the existing Schedule
1. They also amend provisions in Schedule 22 to the School Standards
and Framework Act 1998, which concerns the disposal of publicly
funded land at foundation and voluntary schools.
Paragraph 1 of Schedule 13
136. Paragraph 1 of the Schedule replaces Schedule
1 to the Academies Act 2010 with a revised version ("the
new Schedule 1") that also incorporates and extends the provisions
of Schedule 35A to the Education Act 1996 by enabling the Secretary
of State to object to the disposal or appropriation of land held
by a local authority that was used for any maintained school or
Academy within the last eight years. Provisions enabling the Secretary
of State to compulsorily purchase any school land that is disposed
of to a third party in breach of the duty on local authorities
to seek the Secretary of State's consent are re-enacted from Schedule
35A.
137. The new Schedule 1 continues to provide a power
for the Secretary of State to make a scheme to transfer former
maintained school land from local authorities to Academies (but
extends this to include land used for a former Academy), and a
power to direct the transfer of publicly funded land from governing
bodies, trustees and foundation bodies on a maintained school's
conversion to an Academy.
138. The amendments to existing provisions contained
in the new Schedule 1 extend the protection of publicly funded
land held for Academies by providing additional powers for the
Secretary of State to direct the transfer of publicly funded land
held for existing or former Academies.
139. "Publicly funded land" is defined
for the purposes of the Schedule as including land within the
definitions in Part A1 (paragraphs A1(1), A7(1) and A13(1), (2)
and (3)) of Schedule 22 to the School Standards and Framework
Act 1998, which defines publicly funded land held for foundation
and voluntary schools, but is also extended to include public
investment in private land held for an Academy, provided the Secretary
of State or local authority serves a notice within six months
of the date of any public investment. This replicates the existing
position in legislation for voluntary schools (contained in Part
A1 of Schedule 22 to the School Standards and Framework Act) that
receive capital investment from the Secretary of State.
140. There is a new provision to prevent Academies
from disposing of publicly funded land without notifying the Secretary
of State, who has new powers to direct the transfer of such land,
subject to payment of compensation where appropriate. These powers
are intended to put Academies in a similar position to foundation
and voluntary schools, which may also own publicly funded land
and cannot dispose of that land without following a statutory
procedure, including a new requirement to notify the Secretary
of State in addition to the existing procedure involving the local
authority and schools adjudicator.
Paragraphs 2 to 17 of Schedule 13
141. Paragraphs 2 to 12 of Schedule 13 amend Schedule
22 to the School Standards and Framework Act 1998 to ensure that
surplus publicly funded land (within the meaning of paragraphs
A1(1),A7(1) and A13(1), (2) or (3) of Schedule 22) held by the
governing body of a foundation, voluntary or foundation special
school, or a foundation body, may be made available for Academies.
142. Publicly funded land is defined for the purposes
of Schedule 22 in paragraphs A1(7), A7(1) and A13(1)(2) and (3)
of that Schedule and includes land that has been acquired or enhanced
with public money in the ways listed in those paragraphs.
143. Paragraphs A1 to A19 of Schedule 22 provide
a procedure for governing bodies, foundation bodies and trustees
of voluntary and foundation schools to dispose of publicly funded
land, which involves notifying the local authority, with the local
authority being given the chance to object in various ways, and
to claim a share of the proceeds, with the option of an appeal
to the schools adjudicator for a final decision.
144. Paragraphs 2 to 12 of Schedule 13 provide that
where the governing body, foundation body or trustees of a foundation
or voluntary school wish to dispose of publicly funded land they
must first notify the Secretary of State, and must not take any
further steps to dispose of the land via the local authority/adjudicator
procedure without his consent. The Secretary of State then has
the option of directing that the land be transferred to an Academy,
subject to the payment of appropriate compensation.
145. Similarly, paragraph 13 provides that where
a local authority wishes to apply to the adjudicator for the transfer
to them of publicly funded land they think is no longer needed
by a foundation or voluntary school under existing statutory powers,
they must first notify the Secretary of State of their intention
and take no further action until they have received a response.
The Secretary of State may then decide to direct that the land
be transferred to an Academy. If the Secretary of State decides
that the land is not needed for an Academy, the existing procedure
for the schools adjudicator to make a decision may be followed.
Publicly funded land is defined specifically for the purposes
of these provisions and only includes land that has been wholly
acquired or funded by public means.
146. If the Secretary of State decides to direct
that the land is transferred to an Academy, he may make a direction
under paragraph 12 of the new Schedule 1 to transfer the land
to an Academy, but if land includes any privately owned portion,
he must compensate the private owner. This is similar to existing
provisions in paragraph 5 Schedule 22, which allow the Secretary
of State to make a direction on closure of a foundation or voluntary
school for the land to be transferred to a local authority, subject
to a direction for payment of compensation by the local authority
to the private owner for loss of the private portion of the land,
such amount to be determined by the Secretary of State.
147. Paragraph 14 of the Schedule provides direction
powers for the Secretary of State to direct the transfer of publicly
funded land at a foundation or voluntary school that is closing
under paragraph 11 of the new Schedule 1, subject to the payment
of compensation for any privately owned element of the land, thereby
extending the provisions in paragraph 5 of Schedule 22.
148. Paragraph 15 enables land held by governing
bodies of foundation or voluntary schools to be automatically
transferred to an Academy, rather than to the local authority,
on the closure of such a school, if the Secretary of State so
directs.
149. Paragraph 17 of Schedule 13 also provides that
the Secretary of State may direct the transfer of maintained school
playing field land to an Academy if it is no longer needed for
playing field purposes.
ECHR
150. In some circumstances, taking property from
a person by operation of statute may constitute a breach of Article
1 of Protocol 1 to the Convention (peaceful enjoyment of property
rights).The question arises as to whether any of the additional
powers in this Schedule for the Secretary of State can engage
the Convention rights of any of the landowners involved.
151. In relation to wholly privately owned land,
where there has been no public enhancement at all, these fall
outside the remit of the Schedule and would not fall to be subject
to any transfer direction.
152. No issue of Convention rights arises in relation
to transfers from, or to, the local authority since these public
bodies do not have Convention rights. In relation to wholly public
land (i.e. land that may technically not be held by a core public
authority but which was formerly local authority land or purchased
with public funds) there will likewise be no question of any breach
of Convention rights since the transfer to a separate entity (usually
a 'trust' school foundation) will have been on the basis that
the purpose of the transfer was to conduct a maintained school
and that purpose will now have ceased. The body holding the land
will have received it, in any event, without having paid for it
or its upkeep. No issue arises therefore if the Secretary of State
simply transfers the land between such bodies, or from such bodies
to an Academy company by operation of statute or a scheme.
153. In relation to land that falls within the statutory
definition of "publicly funded land" on the basis that
it is land enhanced through relevant public investment but held
by educational foundations, charitable trusts or churches who
provided some or all of the land from out of their own funds,
taking the land from such bodies would engage their Convention
rights to hold property without interference. If the land were
to be taken without adequate compensation for the loss, this would
also be likely to constitute a breach of those rights. The same
principle would apply to any land that is compulsorily purchased
by the Secretary of State from a third party, provided it is a
body to which Convention rights apply. However, the clause and
Schedule provide that in relation to such land held by private
entities, or in which the private entity may have an interest,
the non-public body would be compensated for any deprivation of
property or interest, by compensation from the Secretary of State.
154. Compensation is to be determined by the Secretary
of State on the basis of what he considers to be appropriate.
This replicates the existing position in legislation for determinations
of compensation where a foundation or voluntary school that holds
publicly funded land closes (paragraph 5 of Schedule 22 to the
School Standards and Framework Act 1998).
155. On the basis that the powers in this Schedule
replicate the position in existing legislation for the determination
of compensation, and that any determination of compensation by
the Secretary of State would be subject to legal challenge by
way of judicial review if the determination was considered to
be unreasonable, the Government considers that to the extent that
any rights of such landowners are engaged, there will be no breach
of Article 1 of Protocol 1 to the Convention.
1 February 2011
3. Letter from the Committee Chair, to Rt Hon
Michael Gove MP, Secretary of State for Education, 22 March 2011
The Joint Committee on Human Rights is currently
scrutinising the Education Bill for compatibility with the UK's
human rights obligations. It is grateful for the very full Human
Rights Memorandum which your Department has provided and to your
officials for making themselves available to meet with the Committee's
staff, both of which have greatly assisted the Committee in its
scrutiny task. I would be grateful for your answers to the following
questions.
Extended powers to search pupils
The Bill proposes to extend the power to search pupils
for items which the school rules identify as an item for which
a search may be made.[37]
Force may not be used to conduct such a search. The Government's
Human Rights Memorandum acknowledges that this extended power
to search includes a power to search for items that in themselves
may be innocuous.[38]
The Government also accepts that such a search interferes with
a pupil's right to respect for their private life under both Article
8 ECHR and Article 16 UNCRC, but considers that such interferences
would be justified. It considers that the requirement that such
interferences be in "accordance with the law" is satisfied
because the Bill provides that the item can only be searched for
if it is identified as such in the school rules. However, the
Bill itself does not prescribe the sorts of items which can be
so identified by the school rules, nor does it contain any limitation
on the sort of items which can be so identified. The Government
intends to produce guidance for schools explaining the nature
of the obligations on them under Article 8 ECHR.
Q1. What guidance does the Government intend to
give to schools about the sorts of items in respect of which it
may be justifiable for the school rules to identify as items for
which pupils may be searched?
The Bill also relaxes the safeguards that apply when
a pupil is searched, by providing that a person carrying out a
search of a child need not be of the same sex as the child if
the person reasonably believes that there is a risk that serious
harm will be caused to a person if the search is not carried out
as a matter of urgency and in the time available it is not reasonably
practicable for the search to be carried out by a person of the
same sex as the child.[39]
The principal justification for the relaxation of the safeguard
is that in primary schools there is often a lack of male teachers.
As drafted, however, the provision would apply equally to searches
of secondary school pupils. The Human Rights Memorandum acknowledges
this but states that "the Government envisages that in practice
it would be on very rare occasions that secondary school teachers
would undertake a search of a pupil of the opposite sex."
The importance of the safeguard for privacy arguably increases
with the age of the pupil, but there is nothing on the face of
the Bill which acknowledges this. The Government view is that
the circumstances in which the searcher can search a child of
the opposite sex are sufficiently tightly drawn to make this provision
compatible with Article 8.[40]
Q2. What safeguards does the Government intend
to provide to ensure that the power to search a pupil of the opposite
sex in secondary schools is only used "on very rare occasions"
as it envisages?
The Bill also provides a very wide power to examine
and erase date or files on an electronic device confiscated from
a pupil "if the person thinks there is good reason to do
so."[41] The person
must have regard to any guidance issued by the Secretary of State
in determining whether there is a good reason for examining or
deleting the data or files. The intention behind the provision
is to allow the searcher to see whether there are, for example,
any images of bullying or threatening messages that show that
the device is being used for cyber-bullying,[42]
but the power is very widely drafted and there is nothing on the
face of the Bill to restrict its scope. The intention is to prevent
possible misuse of the power by issuing guidance.
Q3. What safeguards does the Government intend
to include in guidance to ensure against the arbitrary exercise
of the very wide power to examine and erase data on an electronic
device seized from a pupil?
Review of school exclusions
One of the Government's justifications for its proposed
reforms of the exclusions appeals process is that "possible
reinstatement of an excluded pupil—however rarely this happens—can
undermine the headteacher's authority."[43]
The Committee is interested in ascertaining the extent to which
this is an actual, practical problem.
Q4. In how many cases has the reinstatement of
an excluded pupil been ordered by an independent appeal panel
in each of the last three years for which figures are available
i. In total
ii. As a proportion of the total number of
appeals brought
iii. As a proportion of the total number of
exclusions?
In its Human Rights Memorandum, the Government relies
on the case of R (on the application of LG) v The Independent
Panel for Tom Hood School [2010] EWCA Civ 142 in support of
its view that Article 6 ECHR is not engaged because exclusion
is not determinative of a civil right. The Tom Hood case
was decided in February 2010. In March 2010 the Grand Chamber
of the European Court of Human Rights decided Orsus v Croatia,
in which it held that Article 6 ECHR applied to an education dispute.
Q5. After the decision of the European Court of
Human Rights in Orsus v Croatia, is it still
the Government's view that exclusion from school is not determinative
of a civil right, and, if so, why?
The Human Rights Memorandum states (para. 90) that
the review panel provided for by the Bill "provides for an
independent review of the facts) and that this, coupled with the
availability of judicial review, is sufficient to satisfy the
requirement of Article 6 ECHR. However, the review panel only
has the power to quash the decision of the governing body not
to reinstate "if it considers that the decision of the responsible
body was flawed when considered in the light of the principles
applicable on an application for judicial review."[44]
Q6. What are the reasons for the Government's
view that the review panel provides for an independent review
of the facts when the Bill provides that the review panel may
only quash the decision of the governing body if it considers
it to be "flawed when considered in the light of the principles
applicable on an application for judicial review"?
Q7. Assuming that Article 6 ECHR applies, is the
lack of a power to order reinstatement in certain cases at risk
of breaching the Article because it fails to provide the means
to give practical effect to the judgment of an independent tribunal?
Q8. What estimate have you made of the effect
of the proposed change to the exclusion appeals process on the
number of judicial reviews that will be brought?
Q9. Have you sought the view of the Administrative
Justice and Tribunals Council on the proposed reforms, and if
so what was its view?
Q10. Will draft Regulations proposed to be made
under new s. 51A(3) Education Act 2002 be made available during
the passage of the Bill?
Q11 If not:
a) in what case is it envisaged that the responsible
body should not order reinstatement?
b) what is the proposed constitution of the
review panel?
c) how, if at all, will the proposed procedure
at review panel hearings (including the standards of proof) be
different from the current procedure before independent appeal
panels?
Teacher anonymity
The Bill provides for restrictions on the public
reporting of allegations made against teachers amounting to charges
of a criminal offence, before they have been actually charged
with a criminal offence.[45]
Breach of the restrictions is a criminal offence. The Government
acknowledges that the reporting restrictions interfere with the
right to freedom of expression in Article 10 ECHR, but is satisfied
that any interference is justified as a necessary and proportionate
means of achieving the legitimate aim of protecting the reputation
and rights of teachers and supporting teachers in their role as
the professionals responsible for classroom discipline.[46]
The Government considers that the provision answers a "pressing
social need" because teachers are particularly vulnerable
to false allegations from pupils. The Government cites in support
of its view evidence from teachers' unions that the number of
allegations against teachers has increased significantly in recent
years and "in the overwhelming majority of these cases, the
allegations are not substantiated and a significant number are
false." The Committee is interested in ascertaining the full
extent of the problem to which this provision is responding.
Q12. Please provide more detailed statistics to
demonstrate that the overwhelming majority of allegations against
teachers are not substantiated and a significant number are false.
Q13. In each of the last three years, how many
examples is the Government aware of in which allegations against
teachers have been made public before charge?
Q14. Please provide details of the specific examples
that the Government has of allegations against teachers being
published before charge referred to in para. 114 of the Human
Rights Memorandum.
Q15. Please provide in full the Government's justification
for the creation of a new criminal offence of breach of reporting
restrictions, in terms of the Government's own gateway requirement
for the creation of new offences.
Q16. What evidence does the Government rely on
to demonstrate that teachers are more vulnerable to false allegations
from pupils than other professions such as prison officers, police
officers, members of the armed forces, or staff at secure training
centres?
It would be helpful if we could receive your reply
by 6 April 2011. I would also be grateful if your officials could
provide the Committee secretariat with a copy of your response
in Word format, to aid publication.
22 March 2011
4. Letter to the Committee Chair, from Rt Hon
Michael Gove MP, Secretary of State for Education, 7 April 2011
Thank you for your letter regarding scrutiny of the
Education Bill by the Joint Committee on Human Rights. I have
set out answers to your questions below, which I hope you will
find helpful.
Q1. What guidance does the Government intend to
give to schools about the sorts of items in respect of which it
may be justifiable for the school rules to identify as items for
which pupils may be searched?
The purpose of the provisions in clause 2 of this
Bill is to enable teachers to search for items which, although
not intrinsically or potentially harmful, are disruptive to teaching.
We want to leave it to schools to identify, in their behaviour
policies, items that are causing problems in their school or have
the potential to do so. We do not intend to issue guidance that
gives examples or categories of items.
We do wish to support schools in understanding their
obligations, covering for example the legitimate aims of protecting
the rights of others by reference to Convention rights under Article
8 and Article 2 of Protocol 1. This would inform the governors'
and head teacher's determination of what items might go into the
rules as items that can be searched for.
Q2. What safeguards does the Government intend
to provide to ensure that the power to search a pupil of the opposite
sex in secondary schools is only used "on very rare occasions"
as it envisages?
The new provisions will only permit opposite sex
searches if two important tests are satisfied. The first test
is that the person carrying out the search must reasonably believe
that there is a risk that serious harm will be cause to a person
if the search is not carried out as a matter of urgency. The second
test is that in the time available it is not reasonably practicable
for the search to be carried out by a person of the same sex as
the student, or in the presence of another member of staff.
It is these safeguards that we consider will ensure
that the power will only ever be used on very rare occasions.
We believe that teachers and college staff can be trusted, as
professionals, to act in accordance with the law and to use the
flexibility these particular provisions provide in an appropriate
and proportionate way.
Q3. What safeguards does the Government intend
to include in guidance to ensure against the arbitrary exercise
of the very wide power to examine and erase data on an electronic
device seized from a pupil?
Clauses 2 and 3 ensure that a head teacher, college
principal or an authorised member of school or college staff will
only be permitted to examine or delete data or files on a student's
mobile phone or other electronic device if there is a good reason
to do so. In determining whether there is a good reason, the member
of staff must have regard to guidance issued by the Secretary
of State.
We will describe in guidance the process of a search
and will make clear that any examination or erasure of data or
files must link directly to the teacher's justification for conducting
the search in the first place. Our view is that a teacher would
have a good reason for examining the content of a mobile phone,
or any other electronic device, if they suspect or are made aware
that it has been, or is likely to be, used to circulate inappropriate
images or material, for example for the purposes of bullying or
harassment.
Q4. In how many cases has the reinstatement of
an excluded pupil been ordered by an independent appeal panel
in each of the last three years for which figures are available
i. In total
ii. As a proportion of the total number of
appeals brought
iii. As a proportion of the total number of
exclusions?
The table below shows figures for the last three
academic years for which figures are available.
| 2006-07
| 2007-08
| 2008-09
|
| Number of cases where reinstatement was directed
| 100 | 60
| 60 |
| Reinstatements directed as % of appeals lodged
| 9.5 | 7.7
| 9.3 |
| Reinstatements directed as a % of all permanent exclusions
| 1.2 | 0.8
| 0.9 |
Q5. After the decision of the European Court of
Human Rights in Orsus v Croatia, is it still
the Government's view that exclusion from school is not determinative
of a civil right, and, if so, why?
Thank you for referring us to the case of Orsus
v Croatia. It is still our view that exclusion from school
is not determinative of a civil right and therefore that Article
6 does not apply.
Orsus v Croatia is a case
which, in our view, is primarily about discrimination in the educational
context rather than being about denial of the right to education
or about exclusion. The applicability of Article 6 must be seen
in this particular context. We refer to paragraph 143 of the judgment.
"The applicants in the present case made
complaints under Article 2 of Protocol No 1 taken alone and in
conjunctions with Article 14 of the Convention, claiming that
the fact that they had been allocated to Roma-only classes during
their primary education violated their right to receive and education
and their right not to be discriminated against. However the Grand
Chamber sees this case as raising primarily a discrimination issue."
You will no doubt be familiar with the fact of the
case. Consideration was given to the issue of Roma children being
placed in separate classes because of their difficulties with
the Croatian language, whether adequate steps were taken by the
schools to ensure that these children acquired Croatian language
skills quickly enough, whether the curriculum in this context
was adequate and whether their transfer back into mixed classes
was speedy and effective.
The Court found that the "alleged inequality
of treatment in the enjoyment of the right to education is a fundamental
aspect of the present case and the issues pertinent to this case
are to be analysed from the standpoint of Article 14 of the Convention
read in conjunction with Article 2 of Protocol No 1" (paragraph
145).
The Court found that there was a violation of Article
14 of the Convention, taken together with Article 2 of Protocol
1, and in view of this conclusion did not find it necessary to
examine the complaint under Article 2 of Protocol 1 separately
(paragraphs 185 and 186). The "educational dispute"
to which Article 6 was considered applicable was therefore not
actually about the denial of the right to education or exclusion.
We refer to paragraphs 106 and 107 of the judgment.
"The proceedings before the domestic courts
concerned the applicants' allegations of infringement of their
right not to be discriminated against in the sphere of education,
their right to education and their right not to be subjected to
inhuman and degrading treatment. The applicants raised their complaints
before the regular civil courts and in the Constitutional Court
and their complaints were examined on the merits.
Furthermore the applicants right not to be discriminated
against on the basis of race was clearly guaranteed under Article
14 of the Constitution and, as such, enforceable before the regular
civil courts in the national legal system."
This is not what is being determined in relation
to an exclusion. We are clear that, in the context of the existing
statutory framework around educational provision for children
who are excluded, a decision to exclude either on a fixed term
basis or permanently is not determinative of a civil right. The
right to education is not a Convention guarantee of education
at or by a particular institution. The legislative framework provides
for continuing education following exclusion.
We would also like to refer you to the case of Ali
v UK (Application no 40385/06) which was decided recently
and not covered in our Human Rights Memorandum. Whilst the Court
did not specifically consider the applicability of Article 6,
the judgment (in particular paragraphs 51-54) is relevant to the
issues you raised and supports our position in relation to Article
2 of Protocol 1 and exclusion
Q6. What are the reasons for the Government's
view that the review panel provides for an independent review
of the facts when the Bill provides that the review panel may
only quash the decision of the governing body if it considers
it to be "flawed when considered in the light of the principles
applicable on an application for judicial review"?
Our view is that it is right that a school's decision
to exclude can be quashed by a panel if it is considered to be
flawed in the context of a judicial review, but not that a panel
should be able to simply replace a school's decision with its
own.
The review panel will provide for an independent
review of the facts of an exclusion in making a decision regarding
that exclusion in the light of the principles of judicial review.
This will involve consideration of the facts in the context of:
· legality—the
body must act within the scope of its powers and for a proper
purpose;
· procedural
fairness—for example, giving the individual a right to be
heard;
· reasonableness
and rationality—taking into account, relevant but not irrelevant
factors, not making a decision that no reasonable person could
have made;
· compatibility
with European Convention on Human Rights (ECHR) and European Union
(EU) law.
We intend the constitution of the panel to be broadly
the same as the constitution of an appeal panel, so it will remain
independent from the school.
Q7. Assuming that Article 6 ECHR applies, is the
lack of a power to order reinstatement in certain cases at risk
of breaching the Article because it fails to provide the means
to give practical effect to the judgment of an independent tribunal?
It is our firm view that Article 6 does not apply
in relation to an exclusion decision. We have formulated policy
in this area on the basis of this view.
Q8. What estimate have you made of the effect
of the proposed change to the exclusion appeals process on the
number of judicial reviews that will be brought?
Our view is that parental behaviour will not substantially
change. There will still be an independent review of the permanent
exclusion available and parents will be able to request than an
SEN expert attends the review where relevant to the case. Disability
discrimination related permanent exclusion cases will automatically
be able to be brought to First Tier Tribunal (SEND), which will
have the power to reinstate a pupil.
We consider it likely that most governing bodies
will offer to reinstate pupils if directed to reconsider by a
panel and therefore there will be no need for parents to seek
judicial review. There may be a small number of cases where governing
bodies reconsider but decide not to reinstate and parents may
consider judicial review. However, we consider it more likely
that parents would ask for investigation by the Secretary of State
under s 496 of the Education Act 1996, who would have the power
under this section to reinstate a pupil.
Importantly, there is clear evidence over the last
three years that in approximately 60% of successful appeal cases
parents do not opt for their child to be reinstated. The imposition
of a financial penalty on a school which decides not to reinstate
when a review panel quashes the original decision will be a disincentive
to schools making unreasonable exclusions decisions. The fact
that the outcome of a panel's decision can be noted on a pupil's
records and that a quashed exclusion would not count towards the
rule that after two exclusions a parent loses the right to choose
another mainstream school (amendment to section 87 SSFA 1998),
will be additional redress for parents.
Q9. Have you sought the view of the Administrative
Justice and Tribunals Council on the proposed reforms, and if
so what was its view?
Officials have discussed this issue with the AJTC.
AJTC have also submitted written evidence to the Commons Public
Bill Committee.
The AJTC have expressed concerns about whether the
new system is necessary and, in particular, about the removal
of the power of reinstatement from the panel and whether there
is compliance with ECHR, article 6. As I have explained in the
Human Rights Memorandum and this letter, I do believe it is necessary
and I am content it is compliant with the ECHR.
AJTC have asked us to consider if all SEN related
permanent exclusion cases should be heard by First Tier Tribunal
(SEND). We did consider this in developing our approach. However,
Tribunals typically take up to 22 weeks to complete a hearing
whereas the review panel will have to meet to consider a case
no later than 15 school days after the day on which the parent
logs the request for review. We believe it to be in the interest
of all concerned to deal with exclusion matters quickly.
We are continuing discussions with AJTC on their
areas of concern.
Q10. Will draft Regulations proposed to be made
under new s. 51A(3) Education Act 2002 be made available during
the passage of the Bill?
A policy statement on the new regulations was made
available to the Commons Public Bill Committee on 7 March, 2011.
A copy is attached at Annex A for your reference. Regulations
will provide for the constitution of the new review panels, how
they will operate and the procedure that they will follow. This
will be broadly the same as for existing appeal panels. The right
to request a review will also follow the current position in relation
to an appeal. We will consult on the details of the regulations
prior to them being laid before Parliament.
Q11 If not:
a) in what case is it envisaged that the responsible
body should not order reinstatement?
b) what is the proposed constitution of the
review panel?
c) how, if at all, will the proposed procedure
at review panel hearings (including the standards of proof) be
different from the current procedure before independent appeal
panels?
Under the new system the final decision on reinstatement
will be made by the school. We consider it likely that most governing
bodies will offer to reinstate pupils if directed to reconsider
by a panel. However, there may be local circumstances where the
school considers that the detrimental effect on the wider school
community of a pupil being reinstated mean that they decide not
to reinstate the pupil. The school is best placed to make that
decision.
We intend that the review panel constitution will
mirror that for independent appeal panels as set out in SI 2002
No 3178, The Education (Pupil Exclusions and Appeals) (Maintained
Schools) (England) Regulations 2002. We expect that the procedures
also will broadly mirror those for appeal panels. We will consult
on the issue of the standard of proof during the consultation
on regulations. Under the new system parents can ask for an SEN
expert to attend the panel if relevant to the exclusion. The SEN
expert will be there to offer advice but will not have the power
to vote on the panel. The regulations will be the subject of consultation.
Q12. Please provide more detailed statistics to
demonstrate that the overwhelming majority of allegations against
teachers are not substantiated and a significant number are false.
Over a significant number of years teacher unions
have been highlighting devastating individual cases and have drawn
attention to the fact that only a small percentage of allegations
each year result in criminal convictions.
The Association of Teachers and Lecturers (ATL) carried
out a survey in 2009 in which 50 per cent of members questions
(from a sample of over 1,000 participants) reported that they
or a colleague had had a false allegation made against them.
In response to the Children, Schools and Families
Select Committee investigation into allegations against school
staff, carried out in 2009, the National Association of Schoolmasters
and Union of Women Teachers (NASUWT) provided evidence showing
that since 1991 the majority of allegations made against teachers
were false. The figures in the table below indicate that in a
considerable number of cases there was no further action. Of those
that went to court only a small number resulted in a caution or
conviction.
Please note that the figures for 2009 do not reflect
a full year.
| Year | Allegations
| NFA | To Court
| Court NFA | Cautioned or Convicted
| Total Concluded | Total Still outstanding
|
| 1991 | 44
| 33 | 11
| 5 | 6
| 44 | 0
|
| 1992 | 91
| 78 | 10
| 4 | 6
| 88 | 3
|
| 1993 | 153
| 130 | 22
| 12 | 10
| 152 | 1
|
| 1994 | 134
| 108 | 25
| 14 | 11
| 133 | 1
|
| 1995 | 103
| 93 | 10
| 3 | 7
| 103 | 0
|
| 1996 | 108
| 81 | 27
| 13 | 12
| 106 | 2
|
| 1997 | 118
| 96 | 21
| 14 | 7
| 117 | 1
|
| 1998 | 163
| 130 | 30
| 17 | 13
| 160 | 3
|
| 1999 | 190
| 169 | 21
| 17 | 4
| 190 | 0
|
| 2000 | 173
| 154 | 19
| 10 | 9
| 173 | 0
|
| 2001 | 183
| 164 | 18
| 15 | 2
| 181 | 2
|
| 2002 | 161
| 143 | 14
| 6 | 6
| 155 | 6
|
| 2003 | 191
| 171 | 20
| 12 | 6
| 189 | 2
|
| 2004 | 193
| 167 | 23
| 9 | 10
| 186 | 7
|
| 2005 | 170
| 154 | 16
| 8 | 8
| 170 | 0
|
| 2006 | 185
| 171 | 14
| 5 | 8
| 184 | 1
|
| 2007 | 192
| 173 | 11
| 3 | 7
| 183 | 9
|
| 2008 | 148
| 116 | 2
| 2 | 2
| 120 | 28
|
| 2009 | 41
| 16 | 0
| 0 | 2
| 18 | 23
|
| 2741 |
2347 | 314
| 169 | 136
| 2652 | 89
|
In addition, the National Union of Teachers (NUT)
also provided evidence to the Select Committee stating that the
number of NUT members subject to an allegation of criminal misconduct
has remained relatively steady at approximately 200 cases per
annum. Of these about 5% resulted in a conviction or finding of
misconduct. They do not hold statistics on allegations of improper
conduct made against NUT members, which do not lead to police
involvement.
Q13. In each of the last three years, how many
examples is the Government aware of in which allegations against
teachers have been made public before charge?
The Department does not routinely collect this data.
However, a routine search does return a number of cases where
a teacher was named prior to charge. Details of these are set
out below. Some of these cases were referred to by the Minister
of State for Schools at the Public Bill Committee on 22 March.
Q14. Please provide details of the specific examples
that the Government has of allegations against teachers being
published before charge referred to in para. 114 of the Human
Rights Memorandum.
Below is a brief summary of the articles referred
to in our Human Rights Memorandum. The original articles identified
the teachers and schools by name. For the purpose of this response
teacher, pupil, school and place names are replaced with an X.
I can provide copies of the articles if you wish.
1. The Telegraph and Argus (15 May 2009) printed
"A music teacher with nearly 50 years of experience has been
told to stay away from a X primary school after being accused
of assaulting a pupil. XX, who was working part time at X School
in X, has vehemently denied the claim against her."
2. The Mail online (no date) printed "A head
teacher and her deputy were under suspension today over claims
they taped shut a 10-year-old boy's mouth on a school trip. XX,
head of X School in X, Essex, and assistant head teacher XX are
accused of dishing out punishment to X."
3. The Telegraph (15 January 2009) printed "XX
was arrested and bailed on suspicion of breaching a position of
trust with boys from her school."
4. The Lancaster Guardian (12 March 2009) printed
"A senior teacher at a leading X church school has been suspended
amid claims he verbally abused pupils. XX, head of music at XX
school, has been suspended on full pay since last Friday."
5. The Guardian (9th July 2009) printed
"Teacher held on suspicion of attempted murder of 14-year-old
pupil. XX was arrested by Nottinghamshire police yesterday after
the incidence at X school in Mansfield that left a 14-year-old
boy with serious head injuries."
6. Liverpool Local News (27 Feb 2010) printed "Teacher
suspended over allegation of sexual relationship with female pupil
at X School. X, an assistant head teacher at the top performing
school, has been asked to stay off work while the X school and
council probe the allegation."
Q15. Please provide in full the Government's justification
for the creation of a new criminal offence of breach of reporting
restrictions, in terms of the Government's own gateway requirement
for the creation of new offences.
The Coalition Agreement contained a commitment to
"give anonymity to teachers accused by pupils and take other
measures to protect against false accusations". Our particular
concern is to remove, or significantly reduce, the risk of teachers
having been named publicly when allegations are later found to
be malicious or unfounded. The Bill will impose reporting restrictions
preventing the publication of information that would identify
a teacher in connection with an allegation unless or until they
are charged with a criminal offence. This will change attitudes
in the classroom, making teachers feel more valued and less vulnerable
to false allegations.
At present there is no provision in legislation preventing
the media from publishing information identifying teachers against
whom allegations have been made. The press are signed up to the
Editor's Code of Practice, which is ratified and enforced by the
Press Complaints Commission. However, the existing Editor's Code
(self-regulation) does not take account of the particular position
of teachers, their vulnerability to false allegations and the
public interest in protecting their status in schools. As I have
set out, the Code has not prevented a number of cases of details
of allegations being published at a time when no charges had been
brought against the teacher.
Teachers may have a legal remedy in certain circumstances
under the law of defamation or under the Human Rights Act, but
these provisions are unlikely to prevent publication in most cases.
Where these remedies are available, they are more likely to be
a reaction to publication, rather than prevent publication taking
place.
In all the circumstances, and given the serious detriment
suffered by individual teachers as a result of publication of
false allegations, were are satisfied that a legislative solution
is needed, with the force of a criminal offence for a breach.
There is a need for a penalty where the restrictions
are ignored. We believe that only by including a criminal offence
for a breach of restrictions could we make it clear that the public
interest lies in protecting teachers from damage done by malicious
allegations. A civil penalty would not be appropriate because
there is no regulatory body to enforce and prosecute it. We are
satisfied that we have got the balance right by creating a summary
offence and the threat of prosecution will act as a deterrent,
even to those for whom the level of fine may not be significant,
such as national newspapers.
In proposing this new offence, the Department carried
out a justice impact assessment in line with the Ministry of Justice
guidelines and received approval through the Ministry of Justice
Criminal Offence Gateway. This considered what impact the new
offence would have on the justice system in terms of: whether
there would be an increase in demand for legal aid; whether more
cases would be hard in the courts and tribunals; and whether there
would be additional pressure on the prison and probation services.
The nature of the offence and the level of sentence
are in line with legal precedents for similar provisions relating
to reporting restrictions, such as section 44 of the Youth Justice
and Criminal Evidence Act 1999 (in relation to people under-18
involved in criminal investigations and proceedings), and section
1 of the Sexual Offences (Amendment) Act 1992 (in relation to
individuals making allegations of specified sexual offences).
Q16. What evidence does the Government rely on
to demonstrate that teachers are more vulnerable to false allegations
from pupils than other professions such as prison officers, police
officers, members of the armed forces, or staff at secure training
centres?
I have set out earlier in this letter the evidence
that the Department has gathered of a problem for teachers that
needs to be addressed. Given the careful balance of competing
rights that this clause requires, we have drawn clause 13 narrowly.
We have resisted a number of attempts to widen the scope of the
provision at this stage in the absence of robust evidence that
there is a systemic problem for other professions on the same
scale as that experienced by teachers.
Clear evidence that other groups in the education
sector are in the same position as teachers in terms of their
role and their vulnerability to false allegations is not yet available.
We will be continuing our discussions with representatives of
support staff and the further education sector on this issue.
We are committed to considering any evidence that is made available.
However, I am sure you will appreciate that we need to proceed
with caution and consider the impact of this provision before
making a decision to extend it further.
We have not been provided with any evidence of a
problem for other professionals on the scale of that suffered
by teachers. The Government would consider such evidence carefully
if it were brought forward. It is of course apparent that teachers
spend a much higher proportion of their working life with pupils
than any of the other groups cited, and so it follows that they
are vulnerable to false allegations from pupils.
I hope this response is helpful in your consideration
of the Education Bill. If you require any further information
please do not hesitate to contact me.
7 April 2011
5. Letter to the Committee Chair, from Richard
Thomas, Chair of the Administrative Justice and Tribunals Council
(AJTC), 10 May 2011
I am writing as Chairman of the Administrative Justice
and Tribunals Council (AJTC) in connection with the provision
in the Education Bill regarding school exclusion appeal panels.
The AJTC has seen a recent exchange of correspondence between
the Committee and the Secretary of State, which raised many of
the same issues that AJTC has also raised with the Minister in
connection with the Bill's provisions.
As you may be aware the AJTC's role is to keep under
review the administrative justice system and the operation of
tribunals falling under its oversight, including exclusion appeal
panels. Of all the tribunals under the oversight of the AJTC (and
its predecessor body the Council on Tribunals) the operation of
admission and exclusion appeal panels have continued to give cause
for concern, largely because of the widely held perception that
they are not sufficiently independent. This was highlighted in
a Special Report produced by the Council on Tribunals in 2003[47]
and by Sir Andrew Leggatt in his 2001 Review of Tribunals.[48]
Despite a number of positive developments in recent years in the
operation of the panels, for example the introduction of mandatory
training for panel members and greater clarity in the chairing
of panels, fundamental concerns remain with regard to their independence,
both actual and perceived.
The AJTC's primary focus is on the users of tribunals,
in this case the parents of excluded children and the children
themselves. One of the main flaws from the AJTC's perspective
of the policy analysis in respect of the government's proposals
is the implication that all exclusions concern children who have
been violent against teachers or fellow pupils, which is patently
not the case. AJTC members have observed appeal hearings for children
who have been excluded for far less serious incidents and it is
this type of case that will suffer particular injustice under
the new arrangements. Indeed, the small percentage of permanent
exclusions that go to appeal (around 9%) are more likely to be
cases where the parents of the excluded child feel a real sense
of injustice. The Department's response to my earlier letter to
the Secretary of State highlighted support for the government's
proposals from head teachers and unions, which is of course to
be expected. There was little by way of acknowledgement in the
response of the likely impact on excluded children, and no recognition
that some children may be excluded for far less serious misdemeanours.
It is however uncontroversial that—as a matter
of justice and due process—genuinely independent review
is needed where decisions to exclude a child from a school are
challenged. The consequences of any exclusion can be life-changing.
The allegations, their seriousness and the judgments made in each
case need to be examined to ensure that the decision can be justified
and was correct.
Appeals to the First-tier Tribunal (SEND)
Because of the clear link between exclusion and the
children involved having special educational needs (SEN) the AJTC
(and former Council on Tribunals) has long held the view that
exclusion appeals should be heard by the First-tier Tribunal (Special
Educational Needs and Disability)—FTT(SEND).
On the question of appeals being heard by the FTT(SEND)
it is not entirely accurate for the Department to state that SEN
appeals typically take 22 weeks. In a recent meeting with Judge
John Aitken, the Deputy Chamber President with lead responsibility
for FTT(SEND), the AJTC was advised that the tribunal is currently
piloting an 8-week turnaround time for some SEN appeals. Given
the less onerous evidential requirements for exclusion appeals,
that time could easily be reduced further. In any event, the AJTC
has always held the view that exclusion appeals could be handled
on a separate track to SEN appeals and dealt with more speedily.
Given that around 70% of exclusion appeals concern
children with some degree of SEN, under the new arrangements the
majority of these appeals could theoretically be brought on grounds
of disability discrimination, meaning that they would be heard
by the FTT(SEND), with the other 30% being heard by the new review
panels. In terms of numbers (based on statistics for 2008-09),
of the 640 appeals lodged, 448 would therefore go to the FTT(SEND)
and 192 to the new review panels. It seems illogical to require
each local authority across England to operate a separate appeals
system to deal with such a small number of appeals, incurring
associated costs of recruiting, training and reimbursing panel
members. It must be more economic for all exclusion appeals to
be head by the FTT(SEND), which already has trained judiciary
with wide experience of dealing with such appeals.
Consultation with the AJTC
Finally, I have seen the Secretary of State's letter
to you of 7 April. The Committee asked whether the department
had sought the views of the AJTC on the proposed reforms, the
response to which was that officials had discussed the issue with
us. In fact, the department did not seek the AJTC's views on the
proposed reforms, certainly not before the publication of the
White Paper. Rather, one of our senior policy advisors contacted
the department after publication of the White Paper to seek a
meeting to discuss the proposals, by which time, of course, it
was too late to be able to exert any influence. It is a matter
of some considerable regret that the Department should fail so
lamentably to consult an expert body like the AJTC, which has
statutory responsibility for these matters, before bringing forward
these proposals, which in the AJTC's view will lead to injustice.
10 May 2011
6. Memorandum submitted by the Department of Energy
and Climate Change on Human Rights Compatibility for the Energy
Bill 2011
Introduction
1. This note analyses the ECHR considerations arising
from the Energy Bill. Our conclusion is that, , there is no incompatibility.
Where no specific reference is made to a provision, we consider
that that provision does not raise any ECHR issues or engage any
of the Articles of the ECHR. We have also considered the applicability
of other human rights obligations of the United Kingdom, inter
alia, the UN Convention on the Rights of the Child and the UN
International Covenant on Civil and Political Rights, but we have
concluded that these obligations are not engaged by this Bill.
Summary of the Energy Bill 2011
2. The Bill has five parts:
· Part
1, energy efficiency, contains chapters dealing with the Green
Deal, private rented sector, reducing carbon emissions and home-heating
costs and information about energy consumption, efficiency and
tariffs;
· Part
2, security of energy supplies, contains chapters dealing with
electricity supply, gas supply, upstream petroleum infrastructure,
special administration and the continental shelf;
· Part
3, low carbon generation, contains chapters dealing with offshore
electricity and decommissioning nuclear sites;
· Part
4, Coal Authority, deals with powers of Coal Authority; and
· Part
5, miscellaneous and general, deals with matters such as the repeal
of the Home Energy Conservation Act 1995.
Part 1: Energy Efficiency
Chapter 1: green deal
3. Clauses [17 to 22] give the Secretary of State
powers to modify energy licences for various purposes in connection
with the green deal. These powers enable the Secretary of State
to modify (i) conditions of a particular licences, (ii) the standard
conditions of licences, (iii) documents maintained in accordance
with those licences, and (iv) agreements giving effect to documents
so maintained.
4. Clause [17] enables the Secretary of State to
modify gas transporter, shipper and supply licences, and electricity
distribution and supply licences. Modifications can be made for
the purpose of enabling a holder of these licences to make specified
arrangements for facilitating the collection of green deal payments,
and enabling the holder of a supply licence to take specified
action in connection with green deal payments.
5. Clause [18] enables the Secretary of State to
modify gas and electricity supply licences for the purpose of
providing for the steps to be taken by a licence holder following
a bill payer's default in making green deal payments. The purpose
of making these amendments will be to enable licence holders to
take exactly the same steps in relation to default on payment
of green deal payments as the licence already entitles or requires
them to take in relation to default on payment for supply of gas
or electricity.
6. Clause [19] enables the Secretary of State to
modify gas and electricity supply licences for the purposes of
requiring licence holders to provide bill payers with specified
information in connection with their green deal plans. For example,
it is intended that licence holders will be required to show any
amount being charged in respect of the green deal plan as a separate
item in an energy bill, so that it is easily identifiable. In
addition, licence holders are likely to be required to provide
bill payers with other information periodically regarding their
green deal plan— such as the number of green deal instalments
that remain to be paid, and the period over which they will be
collected.
7. Clause [20] enables the Secretary of State to
modify gas and electricity supply licences for the purposes of
making provision which corresponds to provisions of the Consumer
Credit Act 1974 which are being disapplied by virtue of [clause
24] of the Bill. [Clause 24] provides that energy suppliers will
not need a consumer credit licence issued by the Office of Fair
Trading in respect of their role in relation to the collection
of green deal payments from their customers. We have agreed with
the Department for Business Innovation and Skills that an Office
of Fair Trading licence should not be required for energy suppliers
which simply collect green deal payments for green deal providers,
given that energy suppliers are already licensed by the Gas and
Electricity Markets Authority and that those licences will make
provision at to the collection of energy supply charges and green
deal payments from customers. This power will be used to ensure
that provision is made in suppliers' licences to give consumers
protection which corresponds to that provided for under the Consumer
Credit Act 1974.
8. As set out in paragraphs below in relation to
the smart metering provisions which also contain licence modification
powers, Article 6 and the right to a fair trial may be engaged
by these powers for the Secretary of State to make licence modifications.
However, to the extent that the modifications may constitute a
determination of a licensee's civil rights and obligations, the
Secretary of State must consult licensees under [clause 21] prior
to making any modification and the terms of the modification will
be subject to judicial review. We consider that these safeguards
are sufficient to satisfy the requirements of Article 6, and the
decision in Tsfayo v UK (2206) is distinguishable since the content
of any licence modifications will be an exercise of administrative
discretion, based on policy considerations and expert knowledge
of electricity supply and distribution and gas supply, shipper
and transportation issues.
9. As set out in below in relation to the smart metering
provisions, article 6(1) is engaged in relation to the enforcement
of any new licence conditions. However, licensees are able to
apply to court under sections 30 and 30E Gas Act 1986 and sections
27 and 27E Electricity Act 1989 to challenge any order made or
penalty imposed by Ofgem. Ofgem is also bound by section 6 of
the Human Rights Act as a public authority, and therefore must
act compatibly with the ECHR.
10. The modification of licence conditions could
engage Article 1 of Protocol 1 and the right to property, as it
may interfere with energy companies' licences. Paragraph 63 explains
that the right to property is qualified, and a fair balance must
be struck between the general interest and the rights of the individual.
11. We consider that the powers in clauses [17 to
22] do strike a fair balance between the general interest and
the rights of individual licensees.
12. The exercise of the power in [clause 17] will
enable an essential feature of the green deal, that is the collection
of payments via energy bills, to be implemented, which will enable
customers to pay for energy efficiency improvements (i) only for
as long as they are liable for energy bills at the property, and
(ii) in a way which should enable them to make a clear link between
the cost of the energy efficiency improvements and the amount
of their energy bills.
13. The exercise of the power in [clause 18] will
enable important provisions to be included regarding steps to
be taken when a customer defaults on green deal payments. Provision
made under this power will help to protect energy suppliers and
green deal providers from the risk of customers defaulting on
payments, but will also be used to ensure that steps taken by
suppliers are reasonable and fair to customers-particularly domestic
customers, where licences already contain provision as to the
treatment of customers who default in respect of charges for supply
of energy.
14. The exercise of the power in [clause 19] will
benefit customers, as it will ensure that they receive information
on their green deal plans.
15. The exercise of the power in [clause 20] will
benefit consumers, as it will be used to ensure that equivalent
provisions are included in supply licences to those contained
in the Consumer Credit Act 1974 regarding the activities of debt-adjusting,
debt-counselling, debt-collecting or debt administration.
16. We therefore consider that provision made under
these powers will be in the general interest.
17. The rights of individual licensees are, however,
protected as these powers to make licence modifications are limited
in scope (see subsection (2) of clauses [17, 18, 19 and 20]).
The Secretary of State is required to consult on any modifications
which he proposes to make (clause [21]), and must also publish
details of modifications as soon as reasonably practicable after
they are made. For these reasons we believe that a fair balance
is struck between the rights of licensees and the general interest.
18. Clauses [3], [6] and [16] enable the Secretary
of State to make provision in regulations for sanctions to be
imposed and/or redress to be available where:
a) a green deal participant does not comply with
obligations imposed on him under the regulatory framework envisaged
by the green deal scheme;
b) a person does not obtain the necessary consents
at the time the green deal plan is entered into; and
c) a person fails to comply with his obligations
to make others aware of the green deal when a property is sold
or let out.
19. Each of these clauses enable the Secretary of
State to make provisions requiring a green deal provider to cancel
or suspend a bill payer's liability to make green deal payments
in appropriate circumstances and also for compensation to be payable
by various parties to those who are affected in circumstances
where the relevant obligations have not been complied with.
20. In addition, clause [3] enables the Secretary
of State to make provision requiring a bill payer's liability
to pay for a qualifying assessment to be cancelled and also to
enable a green deal participant's authorisation to be withdrawn
in certain circumstances. It also enables the Secretary of State
to make provision requiring a green deal participant to rectify
a qualifying energy improvement or its installation or to pay
compensation or a financial penalty.
21. Clauses [6] and [16] also enable the Secretary
of State to make provision requiring a green deal provider to
refund payments made under a green deal plan where a bill payer's
liability to make payments has been suspended or cancelled.
22. Clause [16] enables the Secretary of State to
require a civil penalty to be payable where a person has not complied
with his obligations to make others aware of the green deal when
a green deal property is sold or let out.
23. The examples of the types of sanction and redress
that the Secretary of State is able to provide for in regulations
are not exhaustive and the Secretary of State is able to make
provision for other types of sanction in redress where appropriate.
24. These clauses enable regulations to make provision
to determine the civil rights and obligations of green deal participants
and others connected to green deal properties. Therefore, the
clauses engage Article 6(1). We consider that the clauses provide
for these powers to be exercised in a manner which is capable
of being compatible with Article 6. In particular, clause [33]
requires the Secretary of State to make provision in regulations
for an appeal to a tribunal against any sanction imposed or redress
awarded under clauses [3], [6] or [16]. In addition, sanctions
and rulings under all these clauses will be issued by public authorities,
which are bound by section 6 of the HRA.
Chapter 2: private rented sector
25. [Clauses 38-50[49]]
make provision enabling the Secretary of State to regulate the
domestic and non-domestic private rented sectors with a view to
improving their overall energy efficiency. In summary, these clauses
enable the Secretary of State to make provision specifying the
circumstances in which a landlord must carry out energy efficiency
improvements to his or her property.
26. The power to make provision specifying the circumstances
in which a landlord must make energy efficiency improvements to
his or her property is subject to the requirement in clause 39
for the Secretary of State to undertake a review with a view to
determining whether regulatory intervention will improve the overall
energy efficiency of the private rented sector, see further paragraphs
48 and 49.
27. If after a review the Secretary of State considers
that regulatory intervention will improve the energy efficiency
of private rented properties and will not decrease the number
of properties available for rent, clause [40] enables the Secretary
of State to make provision requiring local authorities to impose
a duty on landlords of particularly energy inefficient properties
to take up such energy efficiency measures as are available to
the landlord at no upfront cost (defined in clause 40(6) as "relevant
energy efficiency improvements").
28. Similarly, clause [43] enables the Secretary
of State to make provision enabling tenants of private sector
accommodation to make arrangements for "relevant energy efficiency
improvements" to be made to a property in which they are
resident. The power in clause [43] is likely to be exercised so
as to require a landlord to whom a request is made by a tenant
to consent to the installation of energy efficiency improvements
which will entail no upfront costs to the landlord.
29. Therefore, provision may be made under clauses
[40 and 43] which restrict the circumstances in which a landlord
can refuse to have relevant energy efficiency improvements installed
at or in his/her property.
30. The Department recognises that the exercise of
the power contained within both of these clauses[50]
will engage Article 1 of Protocol 1 (A1P1) of the European Convention
on Human Rights (ECHR). The Department is satisfied that the clauses
themselves are compatible with the ECHR and that the powers contained
within them are capable of being exercised in a way which is compatible
with the ECHR.
31. So, whilst clause [40] will enable provision
to be made requiring a landlord to install to his or her property
relevant energy efficiency improvements, clause [43] enables provision
to be made requiring a landlord to consent to relevant energy
efficiency improvements being made to his or her property. In
both cases, a landlord might reasonably argue that A1P1 is engaged
as the State is interfering with his or her property.
32. In light of such an argument, the questions which
arise for further consideration are:
a) is the interference in pursuit of the general
interest?[51];
b) if (a) is answered in the affirmative, is
the interference proportionate in the way that it seeks to achieve
the matter falling within the general interest?
33. The Department believes that both of these questions
can be answered in the affirmative and therefore is satisfied
that the powers available in [clauses 38-50] are compatible with
the ECHR.
34. The following paragraphs of this section describe
the intended effect of both clauses and the general basis upon
which a subsequent exercise of these powers will be regarded as
an interference which is justified (as in accordance with the
law) and proportionate to the aims reflected in furthering the
general interest. The Secretary of State will need to perform
an assessment of whether a particular interference is proportionate
in due course. For present purposes the Department is satisfied
that the powers in clauses [38-49 (40, 44 and 46 in particular)]
are capable of being exercised in a way which are compatible with
the ECHR. In summary:
a) any interference with a landlord's property
rights will be an interference in pursuit of the general interest
in the form of environmental benefits resulting from a reduction
in carbon emissions, improvements to local air quality and therefore
to public health and also improvements to the security of our
energy supplies. Facilitating energy efficiency improvements will
enable a resident of a rented property to benefit from lower energy
bills and also help to reduce the property's carbon emissions
and thus help to further the general interest.
b) facilitating energy efficiency improvements
by restricting the circumstances in which the owner of a property
may refuse to have energy efficiency improvements made to his/her
property is a proportionate method by which to achieve the general
interest. Significant exemptions from a requirement to install
relevant energy efficiency improvements are likely to be available
to the landlord which the Department considers will demonstrate
that the interference is likely to be proportionate.
35. The low level of take up of energy efficiency
measures in the private rented sector is believed to be caused
by a wider set of barriers than those that constrain the rest
of the UK housing stock. In particular incentives, information
failures, and inertia seem to be more prominent in the private
rented sector than in other sectors.[52]
36. Properties in the private rented sector make
up 17% of the UK's housing stock and contain a disproportionate
number of the most energy inefficient properties.[53]
To date, the uptake of energy efficiency measures in the private
rented sector has been poor. A reason for this may be that a landlord
has no real incentive to pay for energy efficiency improvements
from which he or she will not directly benefit. For example, a
landlord who decides to install loft insulation will not necessarily
benefit from the reduction in energy bills where the energy bill
is paid by the tenant as is usually the case. The usual type of
incentive which may encourage an owner-occupier to invest in energy
efficiency measures as a means of lowering energy bills and improving
the thermal comfort of the property does not seem to apply to
landlords. Therefore, a different approach is required to ensure
that those owning the most energy inefficient properties in the
private rented sector are encouraged to take up offers to improve
the energy efficiency of their property.
37. So, it is important to note that the powers in
these clauses will be restricted to that sector of properties
where there seems to be a barrier to the greater uptake of energy
efficiency measures. The powers are thus constrained in scope;
the powers apply only to properties for which there is evidence
of some inertia in the uptake of energy efficiency improvements.
The powers are constrained further by being restricted to those
types of tenancy agreements where this inertia can be identified.[54]
38. It is also important to note the wider context
in which the powers provided by these clauses (40 and 43 in particular)
will be exercised. These are powers which will operate within
the context of the Green Deal. Part 1 of the Bill introduces the
Green Deal, whose aim is to enable the entire cost of an energy
efficiency measure (and its installation) to be met by way of
instalments - where the amount of the instalment represents the
potential cost saving that the measure's installation will have
on that property's energy bills. So, an energy efficiency measure
which costs £5,000 and is likely to lead to energy bill savings
of £10 per month might be installed with no upfront cost
to the landlord and should result in a Green Deal repayment of
£10 (or less) per month for the bill payer (probably the
tenant). The Green Deal repayment will always be paid by the bill
payer— who in the present context is the tenant and not
the landlord— until such time as the agreed Green Deal finance
amount has been repaid.[55]
Clause [40]—Domestic energy efficiency regulations
39. Clauses [40 and 41] enable provision to be made
placing an obligation on landlords to take up relevant energy
efficiency improvements. Clauses [40and 41] complement clauses
[43 and 44] in that they deal with the case where tenants might
not initiate a request for energy efficiency improvements to be
made to the property. The Department envisages that there will
be circumstances where a tenant may be reluctant to be seen to
be demanding energy efficiency improvements to the property. Local
authorities are under a duty to ensure that landlords comply with
some health and safety legislation. For example, they are required
to ensure that a valid gas/electricity certificate exists for
a rented property and also to ensure that the property is kept
free from particular types of hazards.[56]
These existing functions, whilst different, do have some
similarities to what is intended under this policy where local
authorities will be required to ensure that residential landlords
improve the energy efficiency of their property wherever this
is practicable.
40. Clause [40] will enable the Secretary of State
to place a duty on local authorities to identify particularly
energy inefficient properties in the residential private rented
sector and issue notices to landlords requiring them to take up
relevant energy efficiency measures. As with the power in clause
[43] to require landlords to consent to the installation of relevant
energy efficiency measures, see further below, the Government
recognises that this type of provision will engage A1P1 of the
ECHR. However, for the reasons summarised above, and discussed
in greater detail in paragraphs below the Department believes
that an interference will be in the general interest and proportionate
to the aims of reducing carbon emissions, and thereby improving
public health benefits which will result from improvements to
the energy efficiency of the property, and also improving the
security of the UK's energy supply occasioned by the more efficient
use of energy.
41. By issuing a landlord with a notice requiring
him or her to take up relevant energy efficiency measures, the
Department recognises that a landlord's property rights are likely
to be interfered with. However, as explained in paragraphs below
we envisage that in practice a landlord will only be required
to take up those measures for which finance is available; in this
context finance will mean finance which imposes no upfront costs
on the landlord. So, for example, Green Deal finance which will
spread the cost of the measure over the lifetime of the energy
savings which will result or perhaps a 100% subsidy provided by
an energy company under the new Energy Company Obligation.[57]
Where finance is not available or where one of the circumstances
described below apply, a landlord will not need to comply with
the notice served upon him. Put another way, a landlord will be
given an exemption from the requirement to install relevant energy
efficiency measures. So, essentially, the interference will only
bite in circumstances where there is no upfront cost to the landlord
and where his/her property's value will not be adversely affected.
Instead, the value of the property can reasonably be expected
to increase as a result of its improved energy efficiency thus
leading to a positive gain for the landlord caused as a result
of the interference.
Clause [43]—tenant request for energy efficiency
improvement
42. In the context of clause [43] it is not uncommon
for leasehold agreements to contain provisions preventing a tenant
from making structural or other types of alterations to the property
which forms the subject matter of the leasehold agreement. Thus,
a tenant who was minded to take up a Green Deal package for an
energy efficiency measure will often, in accordance with the terms
of his or her lease, need to seek his or her landlord's consent
for the installation of the energy efficiency measure.
43. The exercise of power in clause [43] will restrict
the circumstances in which a landlord faced with a request from
a tenant to proceed with energy efficiency improvements can refuse
permission to do so.[58]
However, a landlord will be able to withhold consent where he
or she is being asked to fund the cost and installation of the
energy efficiency measures, i.e. no Green Deal finance package
is available and/or where there is no subsidy provided by other
programmes such as the Energy Company Obligation[59]
for such circumstances are likely to fall outside the meaning
of "relevant energy efficiency improvements"[60]
that can be requested by a tenant.
44. The Department envisages that there will be other
circumstances, circumstances not related to whether the landlord
will incur any upfront cost to install the measures, which will
justify a landlord refusing to consent to energy efficiency measures
being installed at his or her property. The power in clause 44(1)(c)
enables the Secretary of State to make provision exempting landlords
from having to comply with a notice from a local authority to
make relevant energy efficiency improvements or from having to
consent to a request made by a tenant to install relevant energy
efficiency improvements. The Department expects that the power
of exemption will be exercised so as to exempt landlords from
having to take up relevant energy efficiency improvements or consent
to such improvements where:
a) it can be demonstrated that the value of the
property will be adversely affected (reduced in value) as a result
of the proposed energy efficiency measures being installed. (In
the vast majority of cases it is reasonable to expect the required
energy efficiency improvements to lead to an increase in the value
of the landlord's property);
b) the property is of a specified type;[61]
c) a landlord can show that he/she is unable
to obtain the consent of others for the works.[62]
d) where the landlord believes and can demonstrate
that it would be unreasonable to impose a requirement to consent
to the proposed works.[63]
45. The types of cases falling with the previous
paragraph reflect the circumstances in which the Department accepts
that it may not be appropriate to interfere with the way in which
a person may wish to control or use their property. However, outside
of the circumstances described in the previous paragraph, it would
seem reasonable for a landlord to have to consent to energy efficiency
improvements being made to their property. Outside of these types
of exemption, a landlord will be required to consent only where
there is no upfront cost to the landlord; the cost of the energy
efficiency improvements will be spread in their entirety over
a period of several years and met by the bill payer and therefore
will not impose any upfront costs to the landlord. When a rental
property is vacant the Department expects to make provision enabling
a landlord to apply for an exemption from having to make any Green
Deal repayments. In the vast majority of cases it is reasonable
to expect the required energy efficiency improvements to lead
to an increase in the value of the landlord's property.
Substantive and procedural constraints on powers
46. Exercise of the powers in these clauses will
be subject to both substantive and procedural constraints. Substantively,
before exercising the power which will limit the circumstances
in which a landlord can refuse to consent to energy improvement
measures being installed, the Secretary of State will be expressly
required to be satisfied that regulatory intervention will improve
the energy efficiency of the domestic or non-domestic private
rented sector and will not decrease the number of properties available
for rent in either part of the sector. Before exercising the power
made available by either of these clauses, the Secretary of State
must review the uptake of energy efficiency measures and the associated
level of improvement by, for example, looking at the following:
a) the estimated energy efficiency standards
of properties in the private rented sector in England and Wales
relative to other tenures;
b) the general availability of finance packages
for landlords and tenants;
c) whether there appears to be a need for regulatory
intervention and if so to identify what negative impacts may arise
from such intervention and how those negative impacts may be mitigated.
47. The express need for the Secretary of State to
undertake a review to establish whether it is appropriate to exercise
the powers which these clauses will provide will act as the means
of identifying whether the general interest can be furthered by
regulatory intervention in the private rented sector. The Secretary
of State decision to proceed with regulatory intervention will
be open to judicial review if stakeholders thought that the evidence
underpinning the review did not support regulatory intervention.
48. Procedurally, the exercise of the powers in these
clauses will be subject to a requirement to for Parliament to
approve any Regulations made by the Secretary of State. This will
enable Parliament to consider whether the Secretary of State's
decision to exercise the power is appropriate both in terms of
actually deciding to exercise the power(s) and also in how the
exercise of power balances the interference against a person's
property rights and the general interest.
49. Clauses [42], [45] and [48] enable the Secretary
of State to make provision in regulations for the imposition of
sanctions on landlords who do not comply with the obligations
imposed on them.
50. Clause [42] enables regulations to make provision
to secure that landlords comply with obligations imposed under
domestic energy efficiency regulations (clauses[40 and 41]). In
particular it states that regulations can provide for the imposition
of a civil penalty on a landlord who does not comply with a notice
issued by a local authority, or who provides false information
in connection with obligations imposed by domestic energy efficiency
regulations. The amount of the penalty must not exceed £5,000.
Subsections (4) and (5) of clause [42] require provision to be
made in regulations for an appeal to a court or tribunal against
the imposition of any penalty.
51. Clause [45] enables regulations to make provision
to secure that landlords comply with requirements imposed under
tenants' domestic energy efficiency improvements regulations (clauses
[43 and 44). In particular, it states that regulations can provide
for tenants to apply to a court or tribunal for a ruling that
a landlord has not complied with its obligations - in other words,
that the landlord has unreasonably refused a request to consent
to relevant energy efficiency requirements. Subsections (4) and
(5) of clause [45] require provision to be made in regulations
for an appeal to a court or tribunal against any decision made
by a court or tribunal.
52. Clause [48] enables regulations to make provision
to secure that landlords comply with requirements imposed under
non-domestic energy efficiency regulations. In particular, it
states that a local weights and measures authority can enforce
the regulations, and can impose a civil penalty on a landlord
for non-compliance. Subsections (3) and (4) of clause [48] require
provision to be made in regulations for an appeal to a court or
tribunal against the imposition of any penalty.
53. These clauses enable regulations to make provision
to determine a landlords' civil rights and obligations. In addition,
clause [45] enables regulations to make provision for the determination
of a tenants' right to request consent to energy efficiency improvements.
The clauses therefore engage Article 6(1). We consider that these
clauses provide for the powers to be exercised in a manner which
is capable of being compatible with Article 6. In particular,
the clauses require the Secretary of State to make provision in
regulations for an appeal to a court or tribunal against any sanction
imposed under clauses [42] or [48] and against any ruling of a
court or tribunal under clause [45]. In addition, rulings and
sanctions under all these clauses will be issued by public authorities,
which are in any case bound to comply with the HRA.
Chapter 4: smart meters
[Clause 71]—Smart meters
54. [Clause 71] make minor amendments to the Secretary
of State's powers in sections 88-90 of the Energy Act 2008, sections
41HA-HB of the Gas Act 1986, and sections 56FA-FB of the Electricity
Act 1989 to rollout smart meters in Great Britain. The Energy
Act 2008 gives the Secretary of State power to make licence and
code modifications to require electricity and gas licensees to
rollout smart meters to all gas and electricity customers. The
powers in the Gas and Electricity Acts enable the Secretary of
State to create and grant new licenses in respect of smart metering
activities.
55. In light of further work undertaken by DECC [clause
71] makes various amendments to the Secretary of State's smart
meter powers to:
· give
the Secretary of State power to modify the conditions of electricity
transmission licences and any industry codes or agreements made
under such licences for the purposes of the smart meter roll out;
· make
clear that the power to make licence and code modifications under
section 88(1) includes power to require licensees to provide Ofgem
or the Secretary of State with information to review the efficiency
and effectiveness of the roll out;
· make
clear that the roll out powers can be exercised to make different
provision in different areas to cover any area-based requirements;
and
· extend
the time within which the Secretary of State can make any licence
or code changes, or create any new licensable activities from
November 2019 to November 2018, to cover any additional requirements
arising during the roll out period.
We consider that this clause is compatible with the
ECHR.
ECHR implications
56. Article 6 and the right to a fair trial may be
engaged by the exercise of the power by the Secretary of State
to make licence and code modifications. To the extent the modifications
may constitute a determination of a licensee's civil rights and
obligations, pursuant to section 89 of the Energy Act, the Secretary
of State must consult licensees before making any modification
and the terms of the modification will be susceptible to judicial
review. We consider that these safeguards are sufficient to satisfy
the requirements of Article 6, and the decision in Tsfayo v
UK (2006) is distinguishable since the content of any licence
and code modifications will be an exercise of discretion based
on complex policy considerations, expert knowledge of electricity
and gas distribution and supply, and specialist technical knowledge
of smart metering and communications.
57. Article 6(1) is engaged in relation to the enforcement
of any new licence conditions. Once any licence modifications
have been made, Ofgem will enforce them under the existing regime
in the Electricity and Gas Acts, which includes power to impose
orders to secure compliance and financial penalties.[64]
In terms of Article 6, the Electricity and Gas Acts give licensees
the opportunity to apply to court to challenge any order made
or penalty imposed by Ofgem.[65]
Moreover as a public authority, Ofgem is bound by section 6 of
the Human Rights Act to act compatibly with the ECHR.
58. The roll out of smart meters may engage Article
8 and the right to respect for family and private life, home and
correspondence, because smart meters are capable of collecting
greater information about a consumer's energy use in his property
and the roll out will involve installers entering a customer's
property. We consider that any interference meets the legitimate
aims set out in Article 8(2), in particular the interests of the
economic wellbeing of the country and the protection of the rights
and freedoms of others. With appropriate privacy controls under
the Data Protection Act 1998 and modifications made under section
88 of the Energy Act 2008, the roll out of smart meters will provide
more visible information about energy consumption, encouraging
energy and carbon saving by consumers, as well as enabling improved
network management and security of supply.
59. Changes to licence conditions may also engage
Article 1 of Protocol 1 and the right to property. The right to
property is qualified and by virtue of the second paragraph of
Article 1, it does not prevent a state enforcing such laws as
it deems necessary to control the use of property in the general
interest. A fair balance must be struck between the general interest
and the rights of the individual.
60.We consider that both the power to amend electricity
transmission licences and codes, and the overall extension of
the licence and code modification powers until 2018 strike a fair
balance between the general interest and the rights of the individual
licensees.
61. It may be necessary to modify electricity transmission
licences to ensure the effective introduction and operation of
smart meters. It might, for example, be necessary for Elexon,
the industry code body established under an amendment to National
Grid's transmission licence, and responsible for electricity balancing
and settlement, to play a role in implementation. This could take
various forms, including a transitional role to enable a staged
roll-out of smart meters or to support the establishment of a
central communications body that will support all smart meters.
62. In terms of the general exercise of the powers,
the extension to 2018 is necessary because we may need to make
further licence or code modifications after 2013, for example
if there is a delay in the programme or new requirements concerning
the use of communications networks, safety or technical issues
emerge which require further regulatory action. Overall, smart
meters will bring significant benefits in terms of energy saving,
carbon reduction and security of supply. Customers will receive
better information about their energy use to help them become
more energy efficient and save money. Suppliers will benefit from
improved billing information and no longer needing to carry out
remote meter reading. Distributors will benefit from having more
accurate information to improve grid management and security of
supply.
63. We therefore consider that these amendments strike
a fair balance between the general interest and the rights of
individual licensees.
64. The powers also ensure that any interference
with property is proportionate by limiting the purpose for which
the powers may be exercised (section 88(2) Energy Act 2008, section
56FA(3) Electricity Act 1989, section 41HA(3) Gas Act 1986) and
limiting the duration of the powers to the period of the smart
meter roll [(clause 69 (5), (7) and (8))].
Customer information on cheaper tariffs
65. Clauses [74 and 75] give the Secretary of State
power to modify the standard conditions of supply licences to
require electricity or gas suppliers to give their domestic customers
information about their cheapest tariffs. Clause [76] requires
the Secretary of State to exercise these powers in a manner that
is compatible with the principal objective and general duties
set out in Part 1 of the Electricity Act 1989 and the Gas Act
1986. We consider that these provisions are compatible with the
ECHR.
ECHR implications
66. Article 6 and the right to a fair trial may
be engaged by the exercise of the power by the Secretary of State
to make licence modifications. To the extent the modifications
may constitute a determination of a licensee's civil rights and
obligations, pursuant to [clause 71] the Secretary of State must
consult licensees before making any modification and the terms
of the modification will be susceptible to judicial review. We
consider that these safeguards are sufficient to satisfy the requirements
of Article 6, and the decision in Tsfayo v UK (2006) is distinguishable
since the content of any licence modifications will be an exercise
of administrative discretion, based on policy considerations and
expert knowledge of electricity and gas supply and billing arrangements.
67. As set out above, Article 6(1) is engaged in
relation to the enforcement of any new licence conditions. In
terms of Article 6, the Electricity and Gas Acts give licensees
the opportunity to apply to court to challenge any order made
or penalty imposed by Ofgem[66].
Moreover as a public authority, Ofgem is bound by section 6 of
the Human Rights Act to act compatibly with the ECHR.
68. Also, as set out above, changes to licence conditions
may also engage Article 1 of Protocol 1 and the right to property.
However, the right to property is a qualified one and by virtue
of the second paragraph of Article 1, it does not prevent a state
enforcing such laws as it deems necessary to control the use of
property in the general interest. In terms of Article 1, a fair
balance must be struck between the general interest and the rights
of the individual.
69. We consider that the power to require suppliers
to provide customers with information about cheaper tariffs on
offer strikes a fair balance between the general interest and
the rights of the individual licensees. The exercise of this power
will ensure that customers receive information on cheaper tariffs
and how to switch to them, promoting switching, price competition
and a better deal for consumers.
70. The clauses further ensure that the control on
the use of property is proportionate by including detailed provision
limiting the purposes for which the power may be exercised (clause
[74(2)]) and by the inclusion of a sunset clause (clause [74(7)])
which limits the duration of the powers to 2018. This coincides
with the period of the smart meter roll out, during which time
there may be changes in customer contracts and billing as a result
of the introduction of smart metering.
Chapter 5: energy performance certificates
71. Clause [72] permits the Secretary of State to
make amendments to the Energy Performance of Buildings (Certificates
and Inspections) (England and Wales) Regulations 2007 (the 2007
Regulations) which will enable changes to be made in respect of
the disclosure of documents and information held on the Register
of Certificates, Recommendation Reports and Advisory Reports by
the Secretary of State (the Register). The intended effect of
the clause will enable the Secretary of State to make amendments
to the 2007 Regulations to make data relating to Energy Performance
Certificates ("EPCs"), Display Energy Certificates ("DECs")
and air-conditioning reports more publicly available than the
current regulations allow.
72. In particular, subsection (3) of the clause enables
the Secretary of State, in regulations, to restrict access to
documents and data from disclosure and the number of disclosures
to persons as specified in the regulations. Subsection (4) allows
the Secretary of State to specify conditions to which persons
to whom disclosure is to be given are to be subject and to impose
sanctions for non-compliance with such conditions.
73. The Department considers that this clause is
compatible with ECHR.
74. The Register does, in respect of EPCs issued
in respect of residential properties, contain the addresses of
domestic properties (referred to as address level data) but, importantly
for the purposes of this discussion, does not contain the names
of the owners, landlords or tenants of those properties. For purposes
of data protection and the ECHR assessment of this clause it is
proposed that address level data be treated as personal data.
The information contained on the Register is regarded as environmental
information and, in general, to the extent that the 2007 Regulations
do not apply, access to it is governed by the Environmental Information
Regulations 2004 (EIR). Regulation 4 EIR imposes a positive obligation
on public authorities to make environmental information more easily
accessible and to actively disseminate such information. Under
regulation 5 EIR a public authority is under a duty to make environmental
information available on request. However, these duties do not
apply to disclosure of personal data (such as the address level
data which forms the subject of this discussion) except where
the information can be disclosed in accordance with, in particular,
the Data Protection Principles (the DPP) under the Data Protection
Act 1998.
75. Given the fact that it is intended to use clause
[72] to make for a more open disclosure of the Register and enable
disclosure to be made to Green Deal Providers it is considered
that Article 8 and the right to respect for family and private
life is engaged in respect of the disclosure of address level
data.
76. Article 8 protects the collection, retention
and processing of personal data (e.g. forensic data: S & Marper
v UK, Application Nos. 30562/04 and 30566/04, Grand Chamber judgment
of 4 December 2008).
77. However, the application of the principles set
out in the Data Protection Act 1998 will ensure compliance with
Article 8; See Bouchacourt v France (Application No. 6035/06,
Chamber judgment of 17 December 2009), Gardel v France (Application
No. 19428/05, Chamber judgment of 17 December 2009) and MB v France
(Application No. 22418/06, Chamber judgment of 17 December 2009).
78. The Department for Communities and Local Government
have carried out a small scale Privacy Impact Assessment (PIA)
in respect of the proposed policy underlying clause [72]. As part
of the PIA, an assessment has been made of the compliance of the
underlying policy proposals with the DPP. The Department proposes
to publish the PIA upon introduction of the Bill in the House
of Commons.
79. The following assessment, justifying any interference
with the Article 8(1) right, covers more particularly those rights
arising in respect of EPCs that have already been issued. This
is because it is the intention that for EPCs issued in respect
of domestic buildings following the proposed provisions in the
Bill having effect, each EPC issued will have on it a fair dealing
notice setting out in a transparent way on the face of the EPC
indicating that the information contained in it and the recommendation
report has been placed on the Register with limited access to
some and unlimited access to others; the notice will explain the
purpose of sharing that data. It should be noted, though, that
the following justification arguments have universal application
to the release of address or personal data under clause [72].
80. Where names and addresses are to be passed on
to commercial concerns for direct marketing purposes this amounts
to an interference with the right to private life. In such circumstances
it would now normally be the practice to give individuals the
opportunity to opt-out of the proposed marketing. It should be
remembered that in this case it is only address level data (not
names of individuals) that is being handed over in controlled
circumstances. Initially, it is proposed to limit direct marketing
to homes that already have an EPC rather than blanket market all
households. This is because it is considered that by targeting
EPC holders marketing will be more meaningful as those households
will already have some understanding of energy efficiency of their
home, but will not necessarily have any understanding of how they
might improve that energy efficiency. Giving Green Deal providers
access to the address details of EPC holders will enable them
to proactively market their services to a group of people who
may be more likely to take up such services because they already
have an independently produced certificate,[67]
showing how energy efficient their home is and what could be done
to make it even more energy efficient. As a result, there is an
increased likelihood that the energy performance of more properties
than would otherwise have been the case will be improved, increasing
the likelihood that Government will meet its demanding targets
to reduce CO2 emissions. If the Green Deal policy is implemented
by targeting only those who do not yet have an EPC then the roll
out of the Green Deal will take a very long time and would have
limited impact as the issue of Green Deal specific EPCs depend
upon future sales and rent. The impact of the Green Deal is likely
to be lost; there would be very little work for Green Deal Providers,
assessors etc and the system is unlikely to be able to sustain
itself. Targeting existing EPC holders means that the Green Deal
would have effect immediately with the necessary momentum to carry
it forward. It is therefore considered crucial to the success
of the Green Deal that Green Deal providers have access to those
who already hold an EPC in order to market their Green Deal products
and services which in turn may create some momentum for the type
of behavioural change the Green Deal is hoping to encourage more
householders to make to the way they use energy.
81. It is not proposed to provide an opt-out in relation
to homes that have an EPC. Approximately 5 million domestic EPCs
have been issued and there would be a disproportionate cost involved
in contacting 5 million households to give them the choice of
opting out or in. However, it is proposed that there will be a
form of opt-out post-marketing.
82. It is proposed that individuals will be able
to have some form of opt out of receiving information from Green
Deal providers. Two useful safeguards in this respect would be
(a) the Green Deal provider to make clear in mail shots that consumers
can opt out of further communications and information provided
to them on how to opt out; and (b) Green Deal providers will be
required to remove the data from their database and ensure no
further mail shots are sent to that household if there is no response
from consumer after a specified number of mail shots. In addition,
in respect of future EPCs there will be a fair processing notice
on the face of the EPC indicating that the information contained
in it and the recommendation report has been placed on the Register
with limited access to some and unlimited access to others and
explain the purpose of sharing that data. These measures assist
in ensuring that home owners know to whom their data is being
disclosed and for what purpose.
83. On the basis that Article 8 is engaged, it is
considered that any interference with Article 8 would be in pursuit
of, in general, a legitimate aim on the following grounds:
· The
Green Deal measures will assist the Government in improving the
energy efficiency of buildings because specific measures will
be recommended to building owners as to how this can be achieved,
those owners will be assisted in implementing those measures through
guidance and financial assistance. It is expected that this will
help building owners to reduce their energy costs;
· Buildings
represent 40% of all CO2 emissions produced. It is expected that
the measures implemented under the Green Deal will support the
Government in the reduction of CO2 emissions and will assist meeting
CO2 emission targets set out in the Climate Change Act 2008;
· It will
facilitate research which may be used to inform Government policy.
There has been growing demand for this data for research and statistical
analysis;
· It will
increase access for the general public to useful data and should
increase awareness among the general public of the energy efficiency
of buildings; and
· It supports
the Government's transparency agenda.
84. It is considered that the proposals are necessary
(and proportionate) in a democratic society in order to justify
any interference in Article 8. The dangers and problems posed
by climate change are recognised at an international level (see
for example the Kyoto Protocol). These dangers are also recognised
at the European Union level and in relation to buildings (which
are responsible for 40% of CO2 emissions) action has been taken
through regulation in the form of Directive 2002/91/EC on the
energy performance of buildings. The UK implemented its obligation,
chiefly, through the 2007 Regulations. Through this Directive
and the 2007 regulations the Register record EPCs issued in relation
to domestic and non-domestic properties. The European Union has
through a recast of Directive 2002/91/EC—Directive 2010/31/EU—made
further amendments to deal with increased energy consumption and
to ensure that member states take measures to reduce the Union's
energy dependency and greenhouse gas emissions. As part of these
measures the importance of "providing appropriate financing
and other instruments to catalyse the energy performance of buildings
and the transition to nearly zero-energy buildings, Member States
shall take appropriate steps to consider the most relevant such
instruments in the light of national circumstances."[68]
Member States are, therefore, encouraged to take such measures.
Domestically, the importance of climate change and the need to
take measures to reduce carbon emissions has been recognised.
The Climate Change Act 2008 commits Government to reduce overall
carbon emissions by at least 80% by 2050. Accordingly, it is recognised
that in a democratic society there is a pressing social need to
take action to combat climate change and, particularly, in relation
to buildings. There is a recognition at international, EU and
domestic levels that the need to combat climate change is becomingly
increasingly urgent. Therefore, further steps need to be taken
to address the issue.
85. Giving Green Deal providers access to the address
details of EPC holders will enable them to proactively market
their services to a group of people who may be more likely to
take-up such services because they already have a certificate,
produced independently of the Green Deal provider, showing how
energy efficient their home is and what could be done to make
it even more energy efficient. As a result, there is an increased
likelihood that the policy (of providing access to existing households
(and non-domestic premise) by Green Deal Providers) will be successful
and that this will have the effect of a greater take-up of energy
efficiency measures. Consideration has been given to the following
particular issues:
· is
it necessary to disclose the information in order to carry out
functions in respect of the Green Deal? The policy of removing
the restrictions will aid the aims and objectives of the Green
Deal. For example, it is considered that the Green Deal will have
the effect of improving the energy efficiency of existing domestic
and non-domestic building stock, and will assist in the government
meeting its duties under the Climate Change Act 2008;
· is there
an alternative to sharing information in a form which enables
individuals to be identified (in this case from the address)?
The Department for Communities and Local Government do not consider
that there is any real alternative to sharing address information
with Green Deal Providers, other organisations providing energy
efficiency advice, local authorities providing energy efficiency
advice and/or with members of the public because such advice and
services will needed to be addressed to the occupier of the address;
· are
there rules in place to make sure the information remains adequately
protected from misuse or improper disclosure? There will be safeguards,
in terms of regulatory and licence conditions, as well as technical
(software) provision to ensure that information remains as secure
as possible taking account of the conditions imposed upon Green
Deal Providers, local authorities, and other organisations who
provide energy efficiency advice, organisations that provide advice
on improving the energy efficiency of buildings, universities
and other institutions that carry out relevant research and members
of the public;
· what
is the necessity of targeting EPC holder's now (when originally
the address level data would only have been released in limited
circumstances)? As already indicated there is an increasing urgency
to take further steps to increase energy efficiency in existing
building stock. The urgency necessitates steps which had previously
not been considered. As already explained, the Government does
not consider that contacting existing EPC holders and asking them
whether they wish to opt-out is a viable option. Allowing Green
Deal providers to contact existing householders with an EPC now
(as opposed to applying the policy only to future EPC holders)
enables the Government to address the urgent nature of its international,
EU and domestic obligations; and
· why
not leave EPC holders to make their own decisions on energy efficiency?
The Government considers that action is needed now. Those with
EPCs will not necessarily know how they can improve the energy
performance of their homes and what benefits they and future owners
may derive from such measures. Therefore, it is considered necessary
to target EPCs holders (present and future) to ensure that there
is an increase in the take up of such measures and to, generally,
improve the energy efficiency of housing stock in Great Britain
(the Bill extends to England, Wales and Scotland).
86. It is considered that these measures are necessary
for the economic well-being of the country. It is recognised in
the re-cast Directive 2010/31/EU ("the recast") on the
energy performance of buildings that reduced energy consumption
and an increased use of energy from renewable sources have an
important part to play in promoting security of energy supply,
technological developments and in creating opportunities for employment
and regional development (see recital (3) of the re-cast). In
addition: "Management of energy demand is an important tool
enabling the Union to influence the global energy market and hence
the security of energy supply in the medium and long term"
(recital (4)). What applies in the context of the EU is also applicable
to the domestic energy market. Ensuring efficient use of energy
in buildings with the effect of reducing energy demand means that
Great Britain will be less reliant on importing energy supplies.
Whilst the proposed measures will not provide the complete answer
to coping with dwindling energy supplies and escalating prices,
given that buildings take up a significant proportion of energy
use the measures will go some way in assisting the Government
in managing the energy supply and security as well as prices to
preserve the economic well-being of the country.
Breach of confidence
87. For Article 8 purposes it is also necessary to
consider the common law protection from disclosure information
(whether personal or not) that is given in circumstances giving
rise to an obligation of confidence on the part of the person
to whom the information has been given. Names and addresses (in
these circumstances the disclosure is just limited to addresses)
of individuals that are supplied to public bodies in pursuance
of their functions would in some cases amount to confidential
information subject to the common law tort of breach of confidence.
Confidentiality is not, however, an absolute right. It has long
been established that just cause or excuse and acting in the public
interest are defences to an action for breach of confidence.
88. In relation to EPCs already issued (prior to
the Bill having effect), it should be remembered that what is
being released is only address level data. The nature and quality
of the information contained on the EPC gives cause for some doubt
as to whether it could amount to information to which the law
of confidence could attach. In addition, where such information
is contained on a document which is intended to be transferable
to other persons that also may limit the nature of the confidentiality
of the information. In relation to the last point, the validity
period of an EPC is 10 years and therefore during that period
one might expect the information on it to be transferred several
times where a transfer of the property has occurred. It is also
the case that certain information from the EPC will be open to
the public in any event, as regulation 6(2) of the 2007 Regulations
requires that when a residential property is put up for sale then
the estate agent must either attach the energy asset ratings to
the property or the EPC itself. Therefore, anyone who is interested
in viewing the property can either obtain the EPC or asset rating
with the particulars or, more likely, view that information over
the web. This would therefore, indicate that any confidentiality
in relation to the information is either very limited or non-existent.
In any event, to the limited extent such information is confidential,
the Government believes that there is "just cause" as
increasing energy efficiency and reducing carbon emissions from
buildings (given that 40% of carbon emissions in the EU come from
buildings) is in the public interest. In addition to which, the
underlying policy should provide benefits to EPC holders as they
will receive advice and assistance which will enable them to lower
their energy bills.
89. Given the positive obligations placed upon the
government, under the Environmental Information Regulations 2004,
to progressively make environmental information more available,
under its international and EU law obligations to take increased
measures to combat climate change, bearing in mind the Government's
intention to comply with the Data Protection Act 1998 the limited
nature of the information to be disclosed, it is considered that
the correct balance between respecting individuals' privacy and
disclosure for purpose of achieving the Government's policy has
been struck and therefore, it is considered that this clause is
compatible with the ECHR.
Part 2: security of energy supplies
Chapter 2: gas supply
90. We consider clause [77] to be compliant with
Convention rights. The clause confers a power on the Gas and Electricity
Markets Authority (the "Authority") to direct the gas
Network Transmission System operator (National Grid) to make modifications
to those parts of the Uniform Network Code ("UNC"),
which concern a Gas Supply Emergency. It inserts a new section
36C into the Gas Act 1986. The Authority may only make modifications,
which it considers will decrease the likelihood, duration or severity
of an emergency and which it considers to be market based. (A
modification is "market-based" if it "relates to
the creation of financial incentives for gas shippers or transporters").
Decisions of the Authority are capable of appeal to the Competition
Commission under existing principles set out in section 172 et
seq. of the Energy Act 2004.
91. By way of background the UNC is a network code
put in place by gas transporters pursuant to a condition to the
licence issued by the Authority under the Gas Act 1986, which
sets out the terms on which gas transporters must transact certain
aspects of their business with gas shippers. Clause [77] potentially
engages Article 1, Protocol 1, ("A1P1") because it gives
the Authority the power to modify existing contractual rights
under the UNC, and Article 6, insofar as a decision to modify
affects a licensee's civil rights.
92. As regards A1P1 we consider the measure to be
justified on the basis, that it is in the public interest that
measures be taken to limit the likelihood, severity or duration
of a gas supply emergency, given the ramifications such an event
could have for wider society. We consider the power to be proportionate
on the basis, that it is limited to emergency arrangements and
is subject to procedural constraints, namely a duty on the Authority
to consult such persons as it considers appropriate prior to taking
a decision. The nature of the modifications the Authority may
make is limited further to the creation of financial incentives.
93. So far as Article 6 is concerned we consider
the decision making process as a whole to be compliant. Both the
Authority and the Competition Commission are legally distinct
from the executive, being statutory bodies corporate and we are
satisfied that both are capable of taking impartial decisions
in this respect. Clause 77 also imposes a duty on the Authority
to give reasons for its decisions. Section 172 of the Energy Act
2004 gives the Commission a reasonably broad appellate jurisdiction,
and decisions of both bodies are amenable to judicial review.
It will be clear that the role of the Authority in making changes
to the emergency arrangements will involve complex and expert
decisions and that findings of fact will be little more than "staging
posts on the way to much broader judgments" (per Lord Bingham
in Runa Begum). The fullness of the jurisdiction of the administrative
court in judicial review (in particular to review facts and its
inability to substitute its conclusions for those of the CC) should
not therefore cause problems, in accordance with the principles
laid down in Tsfayo.
Chapter 3: upstream petroleum infrastructure
94. We consider that the new regime implemented by
clauses [80-89] will engage three provisions of the ECHR, namely
Article 1 of the First Protocol to the ECHR, (the right to peaceful
enjoyment of possessions ("A1P1")), Article 6 and Article
8 of the ECHR itself.
95. The new regime for third party access to upstream
petroleum infrastructure replaces a number of different regimes
in various legislation which individually covered determinations
for third party access to a number of different parts of the upstream
petroleum infrastructure. The new regime provides a unified system
for access to the whole of the upstream petroleum infrastructure
which gets rid of discrepancies in the existing, piecemeal legislation
and, in addition, extends the Secretary of State's powers to make
determinations for access.
96. The regime provided by clauses [80-89] is primarily
a dispute resolution regime under which the Secretary of State
can determine access to upstream petroleum infrastructure where
commercial negotiations for such access between the owner and
a third party are stalling. The provision of such a regime is
required by the Second Gas Directive (2003/55/EC) in respect of
upstream petroleum pipelines and it is therefore appropriate that
the remainder of the regime reflects this approach. Under clause
80, the Secretary of State's power to make a determination about
such access is triggered where a person has made an application
for access to an infrastructure owner. If the applicant and the
owner do not reach agreement on this application, then the applicant
may apply to the Secretary of State for a notice under 80(3),
which secures such access. Clause [80(4) and (5)] set out what
the Secretary of State must do on receipt of the such an application.
This includes giving both parties an opportunity to be heard in
relation to the application (see [80(5)(b)]), if he decides to
consider it further.
97. Clause [81] provides an alternative trigger for
the Secretary of State's power to issue a notice under [80(10)].
This is again set against the circumstances of a third party making
an application for access to upstream petroleum infrastructure.
However, rather than requiring an application from the applicant
for a determination, under clause [81], the Secretary of State
is able to issue a determination notice of his own volition, provided
that the following criteria are met:
i. the applicant and owner have had a reasonable
time in which to reach agreement on the application for access;
and
ii. there is no realistic prospect of them doing
so.
98. The same procedural safeguards provided by clause
[80] in making a determination notice apply equally to determination
notices considered under clause [81].
99. The powers provided by clauses [80] and [81]
are supplemented by clause [82], which provides that where a person
has made an application for access to an infrastructure owner
and the Secretary of State is considering giving a notice determining
such access, he may issue a notice ordering the infrastructure
in question to be modified so that its capacity is increased etc.
Again, this power is subject to a number of safeguards, including
giving the applicant and owner the opportunity to be heard before
a modification notice is given.
100. Clauses [83-86] are provisions which are ancillary
to the third party access regime provided by clauses [80-82].
Clause [84] provides for the variation of a notice issued under
clause [80(10)]; clause [85] provides the Secretary of State with
a power to require information, including financial information,
in connection with the third party access regime; clause [85]
provides sanctions for failing to provide information or giving
false information in response to a request made under clause [83]
and clauses [88 and 89] are definition clauses.
Article 1 of the First Protocol
101. The very nature of the regime in granting rights
to third parties to use and provide modifications to the property
of another, raises issues of compliance with Article 1 of the
First Protocol ("A1P1") and the Department considers
that this right is engaged by clauses [80-89]. Nevertheless, A1P1
is a qualified rather than absolute right, being subject to the
control of the use of property in the public interest or to secure
the payment of taxes or other contributions or penalties. Further,
it is subject to the conditions provided by law and the general
principles of international law. As mentioned, the Second Gas
Directive already provides for a legal regime for the resolution
of disputes over access to upstream petroleum pipelines and to
the extent that the new regime covers such disputes, there seems
little doubt that this meets the qualifications set out in A1P1.
102. Moreover, even where there is not overlap with
the areas covered by the Directive, we consider that provision
of an effective dispute resolution power for third party access
to upstream petroleum infrastructure is in accordance with the
general interest since it secures a route through which third
party access may be achieved when commercial negotiations have
broken down. Such access to the upstream petroleum infrastructure
is important for the fostering of an open and competitive market
within the petroleum industry, in accordance with the general
interest of both the industry and, ultimately, consumers. It also
assists in ensuring that there is maximum economic exploitation
of the remaining resources of the UK continental shelf. Without
an effective and comprehensive third party access regime, it would
be unfeasible for many of the smaller fields to go into production,
resulting in a loss of resource. Maximising the economic recovery
of the UK Continental Shelf's hydrocarbon resources is a key aim
for energy policy and our ability to achieve this will play a
key role in maintaining reliable supplies of energy. Connected
to this is the general interest in protection of the environment
which is met by the existence of an effective third party access
regime to the upstream petroleum infrastructure. Because it is
possible for third parties to access the infrastructure which
is already in place, the need for more pipelines, gas processing
plants and oil terminals to be built is reduced.
103. In our view, the dispute resolution model for
this regime is proportionate to achieve these aims, as it remains
a backstop which can only be used in failing negotiations, either
at the instigation of the third party applicant or, under clause
[81], the instigation of the Secretary of State. Furthermore,
the new regime as provided by clause [80] has a number of safeguards
to protect the various parties' interests. The Secretary of State
can only give a notice under clause [80(10)] if satisfied, under
clause [80(8)], that the notice will not prejudice:
a) the conveying or processing by the infrastructure
of the quantities of substances reasonably required (or expected
to be required) by the owner or the owner's associate;
b) the conveying or processing by the infrastructure
of the quantities of substances which another person with third
party access rights has to be conveyed or processed in exercise
of those rights.
104. Subsection (9) of this clause provides that
where a notice does contain provision which prejudices either
of these matters, any person who suffers loss as a result may
recover payments from the applicant to compensate for this loss.
This is to enable the Secretary of State to provide for compensation
where allowing the applicant to use the infrastructure might affect
others' use of the infrastructure, for example, in circumstances
where having another user of the infrastructure leads to a need
for more frequent shut down for the purposes of maintenance. While
it may still be appropriate to grant overall access to the applicant
in such circumstances, the rights of the other users will be safeguarded
by the provision of compensation for the loss of their use of
the infrastructure during such periods. We therefore consider
that this compensation provision constitutes a proportionate incursion
into the users' rights under A1P1. Moreover, it enables the Secretary
of State to make provisions in a notice which are closer to those
reached in the commercial sector, where compensation payments
are common in such circumstances. In applying this subsection,
the Secretary of State would still remain bound by the general
principles of public law in deciding whether the incursion into
other users' rights could be adequately met by the payment of
compensation or whether the prejudice would be so great as to
weigh against allowing access to the applicant at all.
105. Once given, the determination notice is to be
enforced as a contract between the parties, without further intervention
of the Secretary of State (unless one of the parties applies under
clause 83 to vary the notice). It will be possible to assign rights
under the notice freely, as with a standard contractual agreement.
This minimises the involvement of the Secretary of State.
106.We therefore consider that the proposed new regime
is in accordance with the provisions of A1P1.
Application of Article 6
107. We consider that clauses [80-89] engage Article
6 of the Convention in a number of different respects:
a) The role of the Secretary of State in making
a determination of access rights of a third party to infrastructure
owned by another, engages Article 6. We consider that there are
two aspects to this; first, the fact that the Secretary of State
is, in effect, called upon to act as an arbiter in a private dispute
about civil rights and, second, the procedural safeguards which
are built into the regime to protect those rights.
i. With regard to the first aspect, we consider
that the Secretary of State is an appropriate person to act as
an independent arbiter of disputes over third party access in
the first instance, and the availability of Judicial Review of
decisions made under these powers is sufficient safeguard for
the purposes of appeal. The Secretary of State is the regulator
of the upstream petroleum industry generally and so, although
he also has a role in the formation of policy, he is also in possession
of the technical engineering and economic expertise required to
make the determinations as described by the new regime in a way
that a stand-alone tribunal would not be. Moreover, we do not
consider that the more general interest in policy that the Secretary
of State possesses would compromise his independence in resolving
an individual dispute over access between parties. As regulator,
the Secretary of State is accustomed to make similar regulatory
decisions with regard to private rights in respect of granting
petroleum exploration licences and we do not think that his role
in the new regime (which is the same as his role in the current
third party access regime in this regard) increases the risk that
this independence will be compromised.
Furthermore, even if it is felt that there is an
issue surrounding the role of the Secretary of State in making
such determinations under the new regime, we believe that this
is safeguarded by the availability of Judicial Review of his decisions
by the Court.
We take the view that these decisions to direct third
party access to upstream petroleum infrastructure or to determine
that a modification to such infrastructure should be made are
distinguishable from the decision in Tsfayo v United Kingdom.
The issues to be considered in determining access/modifications
require a measure of professional knowledge or experience and
the exercise of administrative discretion pursuant to wider policy
aims, as opposed to simple questions of facts. Each case needs
to be assessed based on the economic circumstances relating to
that part of the infrastructure over which there is an access
(and/or modification) dispute. This will involve, among other
things, considerations of available capacity in the infrastructure,
any prejudice which access might cause the owner of the infrastructure,
the kind of petroleum which is in question and the appropriate
market price for allowing access or carrying out the modifications
requested. Any factual findings would be purely incidental to
the reaching of broader judgments of policy. Tsfayo is also distinguishable
because of the fundamental lack of objective impartiality of the
review board in that case, which could not be said to be true
of the decision maker in this case (again the Secretary of State)
whose role is akin to that of an independent arbiter of unresolved
disputes in this area. Therefore we have concluded that the structure
of the regime with the Secretary of State as decision maker is
compliant with the provisions of Article 6.
ii. Turning to the second aspect, we think that
there are sufficient procedural safeguards in the regime to give
both parties a fair hearing in the determination of access. In
clauses [80, 81 and 82 (compulsory modifications to infrastructure)],
both parties are given the opportunity to be heard before a determination
notice is given. Furthermore, it is intended that the whole regime
will be supplemented by guidance. As part of this guidance, it
will be made clear that both parties will be shown a copy of the
draft determination notice for comment before it is finalised.
In addition, should there be a fundamental issue relating to the
working of the notice, clause 81 will be engaged, enabling the
parties to apply for a variation to the determination notice in
certain circumstances (again with an opportunity for both to be
heard in relation to the application).
b) We think that the use of a power by the Secretary
of State to apply to the courts for an injunction to get a party
to comply with an information notice issued under the new information
gathering power provided by clause [85] will engage Article 6
as it provides for the determination of a person's civil rights.
However, since the exercise of this enforcement aspect of the
power will inevitably be seized of the courts, we think that it
will be considered to be compliant with the provisions of this
Article.
c) We note that Article 6(2) is also engaged
by the creation of the criminal offence of knowingly or recklessly
providing false information to the Secretary of State under 86(1).
Nevertheless, we do not believe that this offence infringes Article
6(2) as the proof of mens rea remains on the prosecution throughout—
the burden of proof does not shift to the defence in any regard.
Application of Article 8
108. The information gathering power in clause [85]
could engage the provisions of Article 8(1). However, Article
8 is a qualified right and we consider that in this case, the
clause in question is justified and proportionate in accordance
with the provisions of Article 8(2). In general terms, we consider
that the provision of this information is necessary in the interests
of the economic well-being of the country, namely the effective
operation of a third party access dispute resolution regime to
cover all upstream petroleum infrastructure. Such a regime will
foster access to the market for smaller and newer enterprises
and therefore promote competitiveness and reduce the ability of
owners to restrict access to the infrastructure by refusing to
negotiate with applicants or setting unrealistically high tariffs.
In addition, a more effective third party access regime should
reduce the need for the construction of more oil and gas pipelines
and processing facilities and therefore further the more general
interest in protecting the environment.
109. Moreover, we consider that the power is proportionate,
as, even though the Secretary of State will have the ability to
require financial information by virtue of [85(5)], the Secretary
of State is not permitted to disclose any of the information obtained
under the power unless the person from whom the information was
obtained consents to the disclosure or he is required to do so
by virtue of an obligation imposed on him by or under an enactment
[(85(6))].
110. In addition, the power of the Secretary of State
to publish notices and variations (or parts of a notice or variation
or summaries of a notice or variation) at clause [84] could also
engage Article 8(1). It is possible that information contained
in a notice or variation could constitute the private information
of the applicant, owner or other user of the infrastructure to
which access has been granted, such as commercial information
relating to the amount of production from a field, or financial
information. However, we consider that the publication of such
notices and variations is necessary in the pursuance of the interests
of the economic well-being of the country and is therefore in
accordance with the qualification provided by Article 8(2). The
publication of notices and variations is integral to the efficient
operation of the third party access regime as a dispute resolution
process. We consider that publication will lead to greater transparency
and therefore certainty, about the terms and circumstances on
which the Secretary of State is likely to determine access. This
greater certainty will mean that the industry will be more likely
to reach private commercial agreements about access, in the full
knowledge of the type of terms that the Secretary of State would
be likely to set, if he were to become involved in the dispute.
This should give smaller enterprises operating in the upstream
petroleum industry a greater ability to negotiate reasonable terms
with larger infrastructure owners.
111. Furthermore, we consider that to the extent
that Article 8(1) is engaged by this power, it is proportionate.
Clause [84] provides that the Secretary of State must give the
opportunity to be heard to the parties to whom the notice was
given, and such other persons as he considers appropriate, before
publishing the notice or variation. This gives the parties the
safeguard of being able to argue that sensitive parts of the notice
or variation should be redacted, or that the effect of the notice
or variation should be published in summary form only. Likewise,
if the Secretary of State takes the view independently that any
information in the notice or variation should be redacted for
reasons of sensitivity, this course remains open to him.
112. We do not consider that the interpretation provisions
of this chapter (clauses 88 and 89) engage the ECHR.
Chapter 4: special administration regime for gas
and electricity suppliers
113. Clauses [90-99] introduce a special administration
regime for energy supply companies in financial difficulty. Instead
of being dealt with in accordance with normal insolvency rules,
such a company may be placed in energy administration, the aim
being to ensure the continuation of energy supply at the lowest
cost, which it is reasonably practicable to incur pending the
company being rescued or its energy supply business being transferred
to another company.
114. We believe that this type of situation gives
rise to two human rights issues:
· First,
could the continued operation of the company in energy administration—with
the possible increased losses to creditors—engage Article
1 of Protocol 1, given that the special administration regime
is being introduced at a time when creditors may already have
made loans (or given other credit) to energy supply companies?;
· Second,
does the fact that the business of a company in special administration
may be transferred to another company by way of a statutory scheme—which
provides that the transfer may take place even though a third
party would otherwise have been able to object to the transfer
engage Article 1 of Protocol 1?
115. We are content that despite Article 1 Protocol
1 being engaged in both cases that the provisions establishing
a special administration regime are compatible with Article 1
Protocol 1.
116. As to the first issue, there will be no deprivation
of property as such. The clauses provide for restrictions on other
insolvency procedures so that a creditor of an energy supply company
may not be able to make use of such procedures. Although there
may be a "control of use", we consider that this will
be in the general interest. It must also be shown that the measures
are proportionate to the aim pursued, although unlike where there
is a deprivation, this does not require the payment of compensation
in all cases. In assessing the proportionality of the measures,
the importance of maintaining the continuation of energy supply
and the stability of the energy market is likely to be accorded
considerable weight; as will the fact that creditors are aware
that they are lending into a regulated environment. While the
extent to which a creditor may suffer loss in any case will be
important in assessing whether the application of the regime was
proportionate, we do not consider that the provisions themselves
violate creditors' ECHR rights.
117. As to the second issue, there is a greater chance
that this may involve a deprivation of property. However, although
a deprivation will normally give rise to a requirement to pay
compensation, the Secretary of State will be required to exercise
the powers given under the Bill compatibly with Convention rights.
In assessing the proportionality of the measures, again the importance
of maintaining the continuation of energy supply and the stability
of the energy market will be considered. It will not be possible
to address this until it arises in practice, though the Bill does
provide a pointer to the need for compensation in appropriate
cases by requiring the Secretary of State to take the interests
of third parties into account when approving the scheme. Again,
this does not prevent the making of a declaration of compatibility.
Part 3: low carbon generation
Offshore electricity (Clauses [101] and [107])
Outline of proposals
118. In summary, DECC seeks to extend the life of
powers available to the Secretary of State under sections 90 and
91 of the Energy Act 2004 (c. 20)("the 2004 Act") to
amend offshore transmission and distribution licences which powers
sunset on 18 December 2010. It also seeks to extend by order the
life of the powers of the Gas and Electricity Markets Authority
(GEMA), commonly known as Ofgem and referred to as such in this
chapter, under Schedule 2A to the Electricity Act 1989 (c. 29)("EA89").
Ofgem may make property transfers schemes in respect of a tender
exercise for an offshore transmission licence. The powers to make
such schemes expire in 2013 unless extended by order until 2016.
DECC seeks the power by order to be amended to allow extension
until 2025.
Section 90 of the 2004 Act
119. Section 90 provides for the Secretary of State
to modify the standard conditions of offshore transmission licences
and offshore distribution licences, modify codes relating to such
licences and agreements giving effect to such codes. There are
requirements for consultation before making the modifications.
In respect of licences granted after modifications are made by
the Secretary of State, Ofgem must make equivalent modifications
of the standard conditions of those licences.
120. Section [90(8)] provides that the Secretary
of State's powers under the section are exercisable during the
18 months beginning with the commencement of the section. The
period ended on 18 December 2010.
121. DECC, Ofgem and industry have worked hard to
make all the necessary modifications to the standard conditions,
following decisions in 2010 to provide additional flexibility
in the enduring regime. However, further changes need to be made
to one of the industry codes for full implementation.
122. DECC therefore seeks amendment of section [90(8)]
of the 2004 Act such that the powers are available for an additional
period of 18 months from the commencement of the amendment.
123. The amendment should have effect as soon as
possible given there is a gap in powers after 18 December 2010.
DECC seeks commencement of the amendment on passing of the Bill.
Section 91 of the 2004 Act
124. Section [91] supplements section [90]. It concerns
the co-ordination licence (i.e. the licence held by National Grid
as the system operator (SO) of the transmission system in Great
Britain). In order to extend the role of National Grid as SO to
the offshore transmission network, the Secretary of State was
granted powers to modify the co-ordination licence and to make
incidental or consequential modifications to the conditions of
other licences and to the standard conditions of licences. There
are provisions for consultation before the Secretary of State
may make the modifications and equivalent provision for Ofgem
to modify new licences as apply under section 90.
125. Section 91(11) provides that the Secretary of
State's powers under the section are exercisable during the 18
months beginning with the commencement of the section. The period
ended on 18 December 2010.
126. Proposed modifications under section [91] are
interwoven with those proposed under section 90 and the same position
therefore applies as explained below.
127. DECC therefore seeks amendment of section 91(11)
of the 2004 Act such that the powers are available for an additional
period of 18 months from the commencement of the amendment.
128. The amendment should have effect as soon as
possible given there is a gap in powers after 18 December 2010.
DECC seeks commencement of the amendment on passing of the Bill.
Schedule 2A to EA89
129. This is given effect by section 6E of EA89 inserted
by section 44 of the Energy Act 2008 (c. 32). Under paragraph
1 of Schedule 2A, Ofgem may make a scheme for the transfer of
property, rights and liabilities in relation to a tender exercise
for an offshore transmission licence. For the conduct of tender
exercises by Ofgem, see section 6C of EA89. The powers under Schedule
2A arise where transmission assets (paragraph 1(3) of the Schedule)
have been transferred to the successful bidder or, for operational
reasons, it is necessary for their transfer but only where the
assets were not constructed by the successful bidder.
130. The power is triggered when an application is
made under paragraph 3 of the Schedule, by the preferred bidder
(defined in paragraph [35] of the Schedule), the successful bidder
(defined in paragraph 36 of the Schedule) and other persons who
own the property etc.
131. An application may only be made during the transitional
period under paragraph [5] of the Schedule. The effect of paragraph
[5(3)] is that the period ends in 2013 but under paragraph [5(5)]
that period may be extended by order until 2016. No such order
has been made.
132. The powers enable Ofgem to resolve disagreements
between generators, bidders and third parties about what property
and rights need to be transferred (and the valuation of them)
as part of the appointment of the bidder as the holder of the
offshore transmission licence. The powers also protect generators
by effectively limiting pricing disputes with the successful bidder
prior to transfer. Ofgem has the power to require the award of
compensation to third parties (see paragraph [17(5)] of the Schedule).
Its determinations are subject to review by the Competition Appeal
Tribunal (see paragraph [23] of the Schedule).
133. The first offshore transmission licence tender
round has taken place. When the powers were introduced, it was
envisaged that generators of offshore renewable energy installations
would not, after the first round, want to construct the transmission
assets in addition to the generation assets. The transmission
assets would be constructed by the prospective offshore transmission
owner (OFTO). However, for the next phase of construction, the
information received by DECC and Ofgem is that some generators
do wish to construct the transmission lines to the generation
installations they construct. This is despite the requirement
under the Third Energy Package (in force March 2011) that a generator
cannot hold both a generation licence and a transmission licence
and therefore they have to divest themselves of either the generation
or transmission assets they build, or possibly both. So far as
electricity is concerned, the relevant instrument in the package
is Directive 2009/72/EC which can be found at:
http://eur-lex.europa.eu/LexUriServ/LexUriServ.do?uri=CELEX:32009L0072:EN:NOT
134. The knowledge by industry that Ofgem has the
powers in Schedule 2A is understood to lead to confidence that
there will not be drawn out disputes relating to transfer of transmission
assets from generator to OFTO and that assets will not be stranded
after construction. Otherwise, OFTOs would factor in the risk
that assets are not transferred in a fair and timely manner, resulting
in a price premium that would be passed onto customers. This confidence
reduces investor perceptions of risk and encourages the early
investment in the construction of offshore transmission generation
and transmission assets. There is a strong public policy drive
to ensure obstacles to the construction and operation of offshore
renewable generation are reduced.
135. To enable future planned rounds of offshore
construction, DECC therefore seeks an extension of the transitional
period under paragraph 5 of Schedule 2A to EA89 from 2016 until
2025, when it is understood that most assets should be completed.
Article 6
136. In respect of sections 90 and 91 of the 2004
Act and the powers to amend licence conditions, the same points
arise under Article 6 as described under paragraphs above related
to Part 1, Chapter 4 of the Bill (smart meters). It should also
be mentioned that clause 98 in the Bill seeks to revive the powers
after they sunset. Some licence conditions have already been modified
and no objection has been raised by the affected licensees.
Article 1 of Protocol 1
137. In respect of sections 90 and 91 of the 2004
Act and the powers to amend licence conditions, the same points
arise as made under paragraphs above related to Part 1, Chapter
4 of the Bill (smart meters)
138. The power to make amendments to licence conditions
without the consent of the licence holder is regarded as justified
in terms of the fair balance between the rights of the licence
holder and the general interest. There is a general interest in
the development of offshore renewable energy generation and of
the transmission system which brings electricity from that generation
to the national grid and hence to homes and businesses in Great
Britain. Without such a system, there is likely to be a significant
risk of insufficient electricity supply unless that supply can
be met from other sources. To the extent those sources are not
renewable, this may prejudice the general interest in achieving
climate change and renewables targets if fossil fuels are required
for electricity generation. It may also require electricity or
the fuels to generate it to be acquired from outside the UK and
so prejudice security of supply.
139. In order to deliver the offshore transmission
system in a timely manner, it is regarded as justified that the
Secretary of State has the powers to amend licence conditions
rather than to rely on changes only if the licence holder agrees.
140. Further, these powers existed until recently
and no change in their effect is sought by clause 98 beyond their
operation for 18 months from passing of the Bill. This period
is regarded as reasonable based on previous experience of developing,
consulting on and making changes to the industry framework.
141. In respect of Schedule 2A to EA89, the powers
granted to Ofgem exist now and allow schemes for the transfer
of property or rights which fall within Article 1 of Protocol
1. Clause 98 seeks to extend the life of the existing powers which
expire in 2013 unless extended by order (none yet made) until
2016. There is therefore no immediate change to the current effect
on property and rights.
142. The scheme powers are part of the regime required
to deliver offshore generation and transmission and the same issues
of justification apply as mentioned above.
143. Applications for a scheme are made by a bidder
for an offshore transmission licence. Other persons who may be
affected by a scheme must be notified of the application (paragraphs
6 and 7) and the application must be published (paragraph 8).
If Ofgem is not satisfied that the property transfer is necessary
and expedient, the application must be refused (paragraph 18).
Ofgem must consider whether compensation must be provided to the
property owner or for any third party adversely affected (paragraph
17). Determinations made by Ofgem in respect of a scheme may be
reviewed by the Competition Appeal Tribunal (paragraph 23) and
a decision by that body may be subject to appeal on a point of
law to the court (paragraph 33).
144. We therefore believe that there is an open and
fair process for the determination of property rights, requirements
that rights may be affected only where necessary and expedient,
that compensation may be paid and that there are sufficient processes
for review and appeal. Having regard to these matters and the
general public interest, it is believed the provisions of Schedule
2A are justified.
145. DECC would mention the experience obtained by
the first round of generation build offshore. Ofgem has found
it has not needed to use the powers to affect property and rights.
The parties involved in generation build and offshore transmission,
knowing that Ofgem can intervene if necessary, have been encouraged
to reach agreement rather than have a solution imposed. It has
also been found that the availability of the powers has prevented
any one party becoming dominant and so distorting the bargaining
position of the parties. In general, the feedback on the existence
of the powers has been positive.
146. In terms of the new date sought for sunset of
the powers (2025, if so extended by order), this is regarded as
necessary. There are future planned rounds of offshore construction,
but allowing time for construction of relevant generation and
transmission assets, subsequent bidding for a licence will not
take place until the early 2020s. Although an applicant for a
scheme need not wait until a late stage, DECC understands that
parties in negotiation are reluctant to be seen to be the first
one to apply to Ofgem. Therefore, applications at a late stage
of the next round cannot be excluded. However, the life of the
powers will only be extended by order for such period as is necessary
in the circumstances at the time.
147. For the reasons stated above we consider that
this clause is compatible with the ECHR.
33 Hansard, 6 Dec 2010 : Column 5WS Back
34
NASUWT (2009), NASUWT evidence to Inquiry into the Allegations
Against School Staff, House of Commons, Children, Schools and
Families Select Committee. Back
35
ATL (2009b), ATL primary school behaviour surveylast retrieved
27 October 2010 from: http://www.atl.org.uk/Images/ATL per cent20primary
per cent20school per cent20behaviour per cent20survey.pdfand http://www.atl.org.uk/media-office/media-archive/primary-behaviour-survery.asp Back
36
http://www.pcc.org.uk/assets/111/Code_A4_version_2009.pdf Back
37
New section 550ZA(3)(g) Education Act 1996, as inserted by clause
2(2) of the Bill. Back
38
Human Rights Memorandum, para 70. Back
39
New section 550ZB(6) and (6A) Education Act 1996, as inserted
by clause 2(3) of the Bill. Back
40
Human Rights Memorandum, para 77. Back
41
New section 550ZC(6E) and (6F), as inserted by clause 2(4) of
the Bill. Back
42
Human Rights memorandum, para 85. Back
43
The Importance of Teaching: The Schools White Paper 2010, para
3.29. Back
44
New s. 51A(4)(c) Education Act 2002, inserted by clause 4(2) of
the Bill. Back
45
Clause 13 of the Bill, inserting new sections 141F, 141G, 141H
into the Education Act 2002. Back
46
Human Rights Memorandum, para 108. Back
47
School Admission and Exclusion Appeal Panels (2003) Cm 5788. Back
48
Tribunals for Users: One System, One Service (2001) pp 178-182 Back
49
Clauses [51-63] contain similar provisions dealing with this policy
but which apply to Scotland only. Nevertheless, the discussion
which follows here, although based on provisions which extend
to England and Wales should be read as applying to the similar
Scottish provisions. Back
50
Clause 46 contains similar powers enabling the Secretary of State
to make provision in relation to the non-domestic private rented
sector. Under clause 46 the Secretary of State can impose a duty
on a landlord to install relevant energy efficiency improvements
and therefore the discussion which follows is equally applicable
to this clause. Back
51
The Department notes the views expressed by the authors of Human
Rights Practice updated with Release 19 (March 2010) in paragraph
18.045 that member states have been afforded a wide margin of
appreciation in determining the general interest. The Department
believes that matters such as environmental protection, improved
public health and security of energy supply are all grounds falling
within the "general interest". Back
52
See 'Private Landlords Research' Harris Interactive (February
2009) for EST and EEPH; EST research. Back
53
For example, 42% of private rented properties with lofts have
less than 100mm of loft insulation installed. This is compared
to only 25% in the owner-occupier sector. Back
54
In the domestic sector, in England and Wales for example, assured
tenancies under the Housing Act 1988 and regulated tenancies under
the Rent Act 1977 will be caught by these powers. However, a tenancy
let by a registered provider of social housing under, for example,
sections 79 and 80 of the Housing and Regeneration Act 2008 will
not be caught. In the non-domestic sector only those with the
lowest energy efficiency ratings will be caught. Back
55
The Green Deal will also be available to owner-occupiers. See
also paragraph 47 which explains how the Department may deal with
any periods where there is no tenant in the property and therefore
where the Green Deal repayments may fall to the landlord. Back
56
Under Part 1 of the Housing Act 2004 local authorities are under
a duty to serve notices on landlords in respect of health and
safety hazards which they have identified at a landlord's property. Back
57
Under the new energy company obligation,energy companies will
be required to promote energy efficiency measures. It is possible
that some energy companies may subsidise the entire cost of an
energy efficiency measure as part of fulfilling their obligation.
This will not necessarily always be the case but it is not unreasonable
to expect energy companies to subsidise the entire cost for those
more vulnerable members of society in much the same way as they
do under the Electricity and Gas (Carbon Emissions Reduction)
Order 2008 (S.I. 2008/188), as amended, and the Electricity and
Gas (Community Energy Saving Programme) Order 2009 (S.I. 2009/1905). Back
58
The discussion which follows is equally applicable to a landlord
who receives a notice from a local authority to install relevant
energy efficiency improvements. Back
59
Currently, under the Electricity and Gas (Carbon Emissions Reduction
Target) Order 2008 (S.I. 2008/188), as amended, defined energy
companies are under an obligation to promote energy efficiency
measures. Energy companies can fulfil their obligation in different
ways. One way is to encourage a domestic customer to purchase
an energy efficiency measure by subsiding its cost. A similar
type of energy company obligation is likely to exist for when
the obligation period in the 2008 Order ends in December 2018.
Therefore, in the present content, it is possible that a tenant
could have promoted to them an energy efficiency measure under
the new energy company obligation; promoted on the basis of the
measure being subsidised to a level where the landlord is comfortable
paying for the rest. The Department envisages that Green Deal
finance packages to work in tandem with subsidies for energy companies
under a future energy obligation so that the entire cost of the
measure is divided between the two. It is only where there is
no upfront cost to the landlord that he/she will be required to
consent. Where he/she has to contribute to the cost of the measure
consent will not be mandatory. Back
60
See [clause 40(5)] for the definition of "relevant energy
efficiency improvements". Back
61
The Department recognises that there are likely to be properties
caught by these powers for which the interference caused may not
be justified or proportionate. For illustrative purposes only,
a property which is a listed building may make it extremely difficult
and/or expensive to obtain the relevant planning permission for
the relevant energy efficiency measure. Such factors may make
the interference disproportionate and therefore properties which
are identified as creating a risk that the interference will be
disproportionate will be excluded from within scope of the obligation. Back
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It may not be possible for a landlord to obtain the necessary
consents of others for the works. A landlord may not always be
the freeholder and therefore may need to obtain the consent of
the freeholder to allow alterations to be made to the property.
Alternatively, a sitting tenant, as the bill payer, may refuse
to agree to take on the Green Deal repayments. Back
63
The Department envisages that there will be circumstances falling
outside the more specific type of cases listed in a.-d. where
the requirement to consent might apply in a way which could be
argued to be disproportionate. There may be circumstances where
although the energy efficiency measures can be installed with
no upfront cost to the landlord they in turn cause further works
or redecoration to be undertaken at the property, the cost of
which is not covered by, for example, the Green Deal finance package.
These costs may make it unreasonable to expect the landlord to
have to consent to the energy efficiency improvements as they
would create a disproportionate interference with a landlord's
property rights. Back
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Sections 28 and 30A Gas Act, sections 25 and 27A Electricity Act. Back
65
Sections 30 and 30E Gas Act, sections 27 and 27E Electricity Act. Back
66
Sections 30 and 30E Gas Act, sections 27 and 27E Electricity Act. Back
67
Requiring existing EPC holders to take out a new EPC for the purpose
of including the Green Deal fair dealing notices is likely to
impose an additional and unnecessary expense on householders which
the Government does not think is desirable. Back
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See Article 10(1) Directive 2010/31/EU. Back
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