Did Tories know their sex ed opt out was illegal?

Tories have used 'wash-up' to block compulsory sex education for 15-16 year olds. But their policy could be illegal under the European Convention on Human Rights.

Our guest writer is Jessica Asato, Acting Director of Progress and Vice-Chair of Brook, a young person’s sexual health charity

Anyone who wants a taste of what the Conservatives would do if they get into government should pay close attention to what’s been happening in ‘wash-up’ over the last two days. As the Vice-Chair of Brook, a young person’s sexual health charity, I have been particularly interested in the passage of the Children, Schools and Families Bill. Among many other progressive measures, such as financial education and regulating home schooling, this Bill would have introduced one year of compulsory sex education from the age of 15-16.

As explained in the text of the Bill, the introduction of a minimum of one year’s sex and relationships education before young people reach the age of consent at 16 would support the right of children and young people to be provided with information necessary to their sexual health and personal development under Articles 8 and 10, and Article 2 of Protocol 1 of the European Convention on Human Rights. The legal change would also give effect to a longstanding recommendation of the UN Committee on the Rights of the Child that health education should form part of the school curriculum.

Yet, as Ed Balls explains in an open letter to Michael Gove, despite the near successful passage of the Bill, the Tories used ‘wash-up’ to argue that the age at which parents could opt-out from the mandatory sex education from 15 as proposed in the Bill, should be raised to 16. A measure which would make the whole point of introducing mandatory sex and relationships education pointless, and as Ed Balls points out, probably illegal. Yesterday, I raised this issue on Twitter with Sam Freedman, Education Adviser to Gove and the Conservatives, who accused the Education Secretary of hiding the “dubious” illegality argument from the Tories until the last moment, suggesting that this was more about creating a “dividing line” than principle.

I thought it sounded odd that the question of legality on the parental opt-out hadn’t ever occurred to the Conservatives and re-consulted the Bill. According to this report from the Human Rights Joint Committee there is quite clearly a legal issue at stake here:

“The ECHR requires the State to respect the right of parents to ensure education and teaching of their children in conformity with their own religious and philosophical convictions. This is not an absolute right and it does not entitle parents to withdraw their children from elements of the curriculum to which they object.”

The report cites an early case where the European Court on Human Rights rejected the argument of a group of Christian parents that the provision of compulsory sex education in state schools was a breach of their right to ensure the education of their children in conformity with their religious and philosophical convictions.

Even so, the Government took into account the fact that this was a controversial issue and therefore sought to “achieve an acceptable balance between the competing rights of both parents and children, and to balance sincerely held but widely divergent views on the subject”. By ensuring that young people would receive one year of compulsory education the Government satisfied both requirements. According to the Human Rights Joint committee, “the Government was clear that the present law, which permits parents to withdraw their children from sex education until their 19th birthday, is unsustainable on human rights grounds”.

I find it completely unbelievable that the Conservatives did not know that their proposal to give parents back the right to opt-out of mandatory sex and relationships education would potentially contravene the law and would render the Bill invalid. I’d like to know whether they still hold to Sam Freedman’s response that Ed Balls was using “dubious” arguments about legality. It sounds more like they were never serious about supporting mandatory PSHE, as Sam Freedman suggested to me. Who’s playing with dividing lines now?

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