Memorandum by the Secretary of State for
Education and Employment
1. What efforts
has your Department made so far to implement the Act and what
have you done to build a Human Rights culture?
In DfEE we have undertaken an extensive training
programme, offering tailored presentations to all divisions. Every
policy division received Human Rights training by October 2000.
In addition to policy specific training sessions, the department
held a major Seminar on Human Rights with speakers from well-known
firms giving talks on the Act and its implications for education
and employment legislation. This event was transmitted live throughout
the Department, as well as to education colleagues in Northern
Ireland, Scotland and Wales.
We also concentrated on helping our associated
bodies to become more aware of and understand the HRA and its
implications. Working with external legal and publicity sources
helped us develop a multi-layered approach to external communications,
as we know our providers obtain their information from more than
All the Public Authorities for whom we are responsible
have been sent, as a minimum, the Human Rights Act Guidance and
leaflets. In addition, DfEE has been in touch with all the authorities
to ask on their training provisions. Most of them have their plans
well in hand and are liaising closely with the Department.
Our biggest public authority group is LEAs and
Schools. We continue to work systematically to ensure that they
get the message by using various media: articles in their magazines
(for example, for school governors, for school teachers etc);
DfEE representatives speaking at various seminars organised by
the LEAs; mounting information stands at conferences organised
by the DfEE (eg school governors' conferences). We also sent out
more detailed guidance to schools in September 2000.
As far as hybrid bodies are concerned, we have
numerous providers who fall into this category. Our policy teams
are working to identify all the companies and organisations which
could be included and are sending out information, including reference
to the HRA in their contracts and offering assistance if they
need it. Where the hybrid organisations have a single representative
bodyeg Unions or the LEAthis job is made easier.
2. How has the Act affected your Department's
approach to human rights issues and what have been the consequences
both for policy formulation and service delivery?
In the DfEE all policy teams continue to ensure
that their public authority is kept up to date with the Act; DfEE
representatives have spoken at some of their events and we know
of many other organisations who themselves have conducted training
on the HRA. Our training has allowed policy teams to understand
that the Human Rights Act defines what the basic rights are and
sometimes requires us to be robust about an individual's rights
if we are to maintain the rights of others.
Part of the strategic approach to implementation
of the Act in DfEE was to engage with those who were most likely
to challenge us after 2 October. We listened carefully to representatives
from special interest groups and various prominent Counsels and
were also assisted in exposing vulnerabilities by the Human Rights
Task Force. This was done with a view to challenging our own thinking
and to avoid any complacency about our legislation, policies and
procedures. We found it a very useful process, giving us a valuable
additional perspective. By 2 October we were satisfied that our
legislation, policies and procedures were compatible and that,
where we may remain vulnerable to challenge, we had sufficient
justification for our approach to be prepared to defend any challenge
that might arise.
Our overall assessment has not changed greatly
since October. We remain satisfied that there is nothing of such
immediate concern as to require amendment to legislation although
procedures and guidance continue to be examined to see whether
improvements could be made. As indicated before, the major concerns
relate to areas where the outcome of any challenge is uncertain
and we will continue to improve at the level of procedure and
guidance until or unless a high level court gives a ruling on
legislation. In areas where discrimination is alleged as being
the consequence of our polices, we believe we have positive reasons
to justify policies where the prospects of those who are less
well represented in certain education environments are enhanced.
3. What have been the implications of your
Department of any court judgements on human rights matters since
the Act came into force on 2 October?
Two Court of Appeal judgements since 2 October
are relevant to DfEE's education interests. The In re K (a Child)
judgement on 15 November 2000 was not directly about education.
Section 25 of the Children Act 1989, on secure accommodation orders
for a minor, was challenged as incompatible with Article 5 on
the liberty of the minor since the specific exception in Article
5 for detention of minors relates to detention for educational
supervision. Section 25 says nothing about educational supervision;
its criteria for an order are safety of the child and safety of
society. The Court followed its duty to interpret domestic legislation
as far as possible as being compatible with the Convention. Because
there is a general duty in the Education Act 1996 to ensure the
education of children of compulsory school age, the Court decided
not to find section 25 incompatible, since there could be instances
where an order could be made to ensure that a child would get
educational supervision. The impact on DfEE's interests is an
acknowledgement by the Court of the basic comprehensive coverage
in our statute law of the right to education (Article 2 of Protocol
1) of all children of compulsory school age.
The second case was Holub v Secretary of State
for the Home Department, 20 December 2000. This case was about
immigration. A Polish family facing a deportation order argued
that their daughter's education would suffer if she was deported
to Poland. She had been in England for a few years: it was argued
that she would be put back to the schooling level she had last
been at in Poland. Since that would blight her prospects of catching
up with peers and seriously damage her education, they argued
that deportation contravened Article 2 of Protocol 1. The Court
of Appeal dismissed this argument, recognising that the right
to education under Article 2 of Protocol 1 was a right to an effective
education, but case law had established no threshold of effectiveness.
It was also clear to the Court that the education in question
had to be the education on offer in that particular State. Therefore
the question of the level of education in another State (Poland)
was irrelevant. In any event, the Court was not persuaded that
the child's education would be damaged: there was evidence that
she would resume schooling in Poland at an appropriate level.
The Court also held that, even if a case had been made that her
education would suffer, that would not suffice to override domestic
immigration law. This judgement makes it clear that the right
to education relates only to access to the education on offer
in that particular State; and that arguments based on this right
would not be sufficient to set aside a deportation order.
4. What impact has the Act had on every day
life in your fields of responsibility?
In DfEE we are very clear that the HRA is about
rights and responsibilities. That is why we ensure that our policies
are very clear that one set of rights may need to be balanced
against the rights of othersor for the good of everyone.
That is why the introduction of the new National
Curriculum order for Citizenship education will help bring to
life Human Rights issues to young people. Citizenship was introduced
in primary schools in September 2000 and will become a statutory
national curriculum subject in secondary schools from September
2002. The new order provides the basis for teaching pupils about
responsible action as citizens. For the first time in secondary
schools, pupils will be taught about legal and human rights and
responsibilities; the diversity of national, regional, religious
and ethnic identities in the UK and the need for mutual respect
and understanding. They will learn about how legal and human rights
underpin society and relate to citizens, and consider the role
of international institutions such as the UN.
The Secretaries of State for Education and Employment
and the Home Office co-launched a special Human Rights Edition
of the Young Citizen's passport to mark the introduction of the
HRA, with a section explaining all about the Act as it affects
young people. The booklet was produced by the Citizenship Foundation
who sent it to all secondary schools in England and Wales for
distribution free of charge to pupils.
The Citizenship order also provides the framework
for pupils to learn about the political institutions that underpin
our society including the work of parliament, government and the
courts as well as the opportunities for individuals and voluntary
organisations to bring about change. The programme emphasises
community involvement by young people, including learning by active
participation in the life and concerns of their community and
5. How have you addressed (where it has arisen)
the duty under section 19 of the Act to make statements of compatibility
or non-compatibility with the Convention in relation to Government
bills; what problems has this created?
This duty has been in force since November 1998
and therefore DfEE is well used to taking it into account in the
formulation of policy for legislation. The duty has been interpreted
across Government as not having to provide an absolute assurance
of compatibility (which would be unrealistic) but rather a statement
that, on balance, the provision would be compatible. Given the
uncertainty as to how the case law will develop domestically over
time, this is still quite a high threshold. It does not cover
a situation where the compatibility may or may not be upheld by
the Court but where the department would wish to put the point
to the test nonetheless. The Minister responsible for the Bill
has positively to believe that the chances of compatibility are
better than even.
Human Rights considerations are taken into account
in any event in formulating policy and therefore section 19 statements
should not normally pose any problems. There is a formal process
of checking the section 19 statement before introducing the Bill
but the issues would all have been dealt with at an earlier stage.
No DfEE Ministers have yet had to say that they cannot give a
view that the provisions of the Bill would, on balance, be compatible.