Did Tories know their sex ed opt out was illegal?

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 19^th 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?

http://twitter.com/jessica_asato/status/11827483275 Jessica Asato

RT @leftfootfwd: Did Tories know their sex ed opt out was illegal? Why did @samfr call it "dubious"? I investigate http://bit.ly/9OrH5C
http://twitter.com/leftfootfwd/status/11826795081 Left Foot Forward

Did Tories know their sex ed opt out was illegal? Why did @samfr call it "dubious"? @Jessica_Asato investigates http://bit.ly/9OrH5C
http://www.mtpt.co.uk Matthew Taylor

All of the above would be a little more substantive if there was anything in there explaining why you think a breach of Arts. 8 and 10 would arise from the opt out.

The only things you advance to support this are:

– Ed Balls claims it. I’ve read his letter, and he asserts this without bothering to explain why this should be right.

– Parliament’s Human Rights Committee doesn’t believe parents have an unqualified right to withdraw their children.

Interestingly, you might have continued your quote of the HRC to include some actual “law” (that’s the bit you’re arguing would be breached). The HRC noted the Kjeldsen case, saying:

‘The Court held that there was no violation of the parents’ rights because the intention of the sex education was to impart knowledge objectively and in the public interest, and the education was conveyed in a “neutral, objective, critical and pluralistic way.”‘

This is a long way from arguing, as Balls wants to, that allowing an opt out breaches the rights of the children involved.

I know the fashion is for open letters that twist the facts, but that’s not evidence based blogging. Maybe you could try again once you’ve figured out a legal basis for the claim?

I suspect the reason you’ve provided no basis for this is that you don’t know what that basis would be. I suspect the same goes for Ed Balls.
http://twitter.com/progressonline/status/11830847146 ProgressOnline

RT @leftfootfwd: Did Tories know their sex ed opt out was illegal? Why did @samfr call it "dubious"? @Jessica_Asato investigates http://bit.ly/9OrH5C
Rory

The idea that how we educate our children should be dictated by a European Convention and that being forced to sit through a year of sex education is part of a child’s ‘rights’ will, I believe, even offend many left-minded people visiting this website.
http://nineteenthly.wordpress.com Mark Ure

I’m going to leave aside your outrageous comment on autonomous education, which is more progressive than anything schools could offer by the very nature of their structure, and make a different point.

Suppose opting out was illegal and a future government brought in something like Section 28. A few years later, when homophobic assaults, murders and suicides went up, as they inevitably would, would you still defend the State’s right to indoctrinate children?
Anon E Mouse

Rory – Bang on the money – this should be part of the EU “Law” that we extricate ourselves from as soon as possible… imagine a system where people like Baroness Ashton is not elected by a single European voter and we can’t boot her out. We are living in a madhouse…
John77

Er – IF it is a legal requirement to operate a sex education policy on the lines that Ms Asato suggests under a protocol passed over 40 years ago then is it not Ed Balls who has been acting illegally ever since he was appointed Minister for Children, Schools and Families?
New Labour has been in power since 1997. In 2010 Ed Balls blames the Tories for making it more difficult to pass a piece of controversial legislation and you report him as claiming that the current situation is illegal as a result of EU legislation passed before we joined the EU and therefore in force during the whole of the latest TWO Labour administrations.
Has the ECJ just passed a new ruling that changes everything that has applied for the past 40 years? If that was true would it change the legality of the practices that have been in place since 1997? Or is Ms Asato talking through her hat?
http://twitter.com/selfgalore/status/11854988106 William Linton

Did Tories know their sex ed opt out was illegal? | Left Foot Forward: … the right of children and young people … http://bit.ly/bBr8KM
http://twitter.com/persdevforyou/status/11854982222 Personal Development

Did Tories know their sex ed opt out was illegal? | Left Foot Forward http://bit.ly/awCxP5
hmmm

Can you please explain the rationale for this being decided at European level rather than national level, local level, or even school level?
http://mtpt.wordpress.com/2010/04/09/child-brides-in-yemen/ 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…. [...]
http://headoflegal.com 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.
http://headoflegal.com 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.
http://www.headoflegal.com/2010/04/09/balls-on-human-rights/ Balls on human rights

[...] was interested in a debate yesterday kicked off by Jessica Asato, writing yesterday at Left Foot Forward about the way Conservative opposition led to the government’s dropping provisions in the [...]
http://bestblogs.labourhome.org/2010/04/08/did-tories-know-their-sex-ed-opt-out-was-illegal/ Did Tories know their sex ed opt out was illegal? « The best Labour blogs

[...] More… [...]