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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16 Responses to “Did Tories know their sex ed opt out was illegal?”
hmmm
Can you please explain the rationale for this being decided at European level rather than national level, local level, or even school level?
Child brides in Yemen « MTPT
[…] This is happening in 2010 – which is officially The Future – and not in some undiscovered corner of a rainforest somewhere. That this kind of behaviour continues, let alone is justified on quasi-religious grounds, puts our petty quinnenial snout counting into perspective. It certainly puts the silly debate about whether having or not having opt outs from sex education violates human right…. […]
Carl Gardner
My interest in this isn’t partisan (to be clear, I’m a Labour member, am happy with Ed Balls’s policy and oppose the Tory amendment); what I’m interested in is the validity of politicians’ legal claims.
I don’t follow the argument that the current law, and the Tory amendment (which are the same in this respect) breach Convention rights by permitting a parental opt-out for 15 year olds. I don’t think anyone has yet explained how that legal argument works, in fact. To say that the ECHR doesn’t require an opt-out is one thing. To say it precludes one is quite another, and needs some legal reasoning to support it.
What’s really extraordinary though about Ed Ball’s letter is he says
“Your insistence that the age limit must be increased to 16 would have made the entire bill non-compliant with UK and European law and, therefore, our lawyers advised me that, as Secretary of State, I had no choice but to remove all the PSHE provisions.”
This is wrong, because the Human Rights Act clearly preserves the ability of ministers even to proceed with legislation they believe breaches the ECHR. There certainly is a choice. And any government lawyer knows this: I teach it to many of them.
Either DCSF lawyers have advised Balls badly (an option I discount, knowing the quality of legal advice he’ll have on this) or he’s completely misunderstanding the advice, or else for some reason he’s misrepresenting it.
doesn’t actually say his lawyers have advised that the Tory amendment would breach the ECHR.
Carl Gardner
Sorry, I somehow messed up the end of my last comment. I meant to say:
It’s also interesting that he doesn’t actually say his lawyers have advised that the Tory amendment would breach the ECHR.
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